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 herein apply only to the Commonwealth of Virginia.
Introduction
About a month ago, I wrote a post answering common questions I had received by e-mail or by comment regarding past blog posts I had written. I received a great deal of positive feedback for this post, as it seemed to address a number of questions people had. I realized, however, that I only got through about half the questions I wanted to address, plus some more have been asked to me since I wrote that post. To that end, I have decided a second post is warranted, and I may continue to do these now and then into the future, along with my occasional FAQ's that don't address previously covered blog topics.
As I said last time, sit back, relax, and see what you can learn from the questions of others.
"You previously said that there is a difference between a retainer and a fee deposit - that technically, a retainer is something you pay to have a lawyer on call, while a fee deposit is essentially an advance on attorneys' fees. Thus, a retainer is typically kept by the lawyer and you are charged extra for any time work, while a fee deposit is only kept if the lawyer does that amount of work, and you are only charged extra once your deposit is used up. I just had a consult with a lawyer who charges a 'refundable retainer.' What is that?"
Ok, if you read my full post, I also mentioned that many lawyers seem to use the word "retainer" and "fee deposit" interchangeably, something that personally drives me crazy. It sounds like that's what's happening here - the lawyer is actually charging a fee deposit. That being said, I cannot be certain without reviewing the actual fee agreement. It is possible that he really is charging a retainer, but it is refundable if one thing or another doesn't happen, so it is worth reviewing the fee agreement carefully. Usually, however, when I see a "refundable retainer," it's the same thing as a fee deposit.
"You previously said that an attorney cannot discuss a case with an opposing party if that party is represented, and might be safest by simply ignoring that person if spoken to. Well, I'm from a small community and my husband's divorce attorney's son is in the same class as my daughter, and I just discovered we both volunteered to be chaperones on the same field trip. I think it would be very awkward if we aren't talking to each other, and I don't want to bring our case into the classroom, but they need the chaperones. What should I do?"
No, I did not make that question up, although I edited a couple facts so as to help keep the people involved anonymous. The reality is, lawyers are people too, we live in the community just like everyone else, and things like the above are inevitable. I have the advantage of living in Northern Virginia, a very large community, so this is pretty rare for me, although I do run into one former party opponent near weekly due to visitation because I'm neighbors with my former client. In smaller communities, however, this happens regularly.
Here's the thing to remember - the other lawyer can talk to you about anything other than the case. Moreover, remember, this is probably just as uncomfortable for that lawyer as it is for you. He won't want his son's field trip ruined any more than you want your daughter's. This is also a good time to remember that while your case is your life, for the lawyer it's his job. No matter how sleazy your husband has behaved, his lawyer has nothing personal against you, and in fairness, you shouldn't have anything against his lawyer.
If you can keep these things in mind, hopefully you can remain cordial and chat comfortably (though still preferably a limited amount), so long as you steer completely clear of talking about the case or anything related to the case. If your case involves custody, don't talk about how much you do in the classroom, how happy your daughter is with you, etc. Just use common sense, the lawyer will do the same, and you should probably be all right. Just also be aware that if you do cross the line, the lawyer will have to stop talking to you - so don't be offended if he does.
"You previously said that if my boyfriend moves in with me but then we break up, I can't just kick him out if he refuses to leave, even though the apartment's in my name only. You also said that if I fear violence while in the process of evicting him, I should consider relocating temporarily until the eviction is complete. Well, that's not something I can actually afford to do, but my boyfriend has directly said that if I try to evict him he will hurt me. Do I have any other options?"
Your situation is actually distressingly common, and there is another option for a situation like yours - you can get a protective order. I lay out the procedures for pursuing a protective order in a post from April. Remember that you will go to the J&DR Court to get this order, as your ex is someone who "cohabits" with you, and thus qualifies as a "family or household member." The advantage of a protective order is that you can get a preliminary or emergency protective order the day you file, in which case the police can come that day and remove your ex from the property, with him being forbidden from returning. If you then succeed in getting the preliminary protective order converted into a full protective order, your ex will be forbidden from returning for two years. During that time, he will have to establish a new residence, meaning your residence will no longer be his residence, and as such you will not have to go through the eviction process at all.
The down side to this approach, however, is that you actually have to have some evidence that you are in danger. Just an underlying fear or intuition isn't good enough. A threat certainly works, but if you are just concerned, that cannot be the basis for a protective order. Obviously, however, anything done to threaten you after you have filed the unlawful detainer could still then be turned around and used to get a protective order.
"You previously said that if someone receiving spousal support remarries but doesn't tell the support payor and continues collecting support, the payee can be required to reimburse the support received all the way back to the date of remarriage, plus interest. What about if the payee, instead of getting remarried, has been 'cohabiting with another in a relationship analogous to marriage' for 5 years - can the payor get the past 4 years' worth of payments back?"
It's always fun as a lawyer to get into areas of law that are unsettled, and this is one of them. There is no case law on this point to address this, and the one case I am aware of where it came up (and I am only aware of this because I was actually involved in the case), it turned out there was no cohabitation, so the question never got addressed.
The statute at issue is Virginia Code Section 20-110, with the relevant provision allowing for reimbursement of past payments added in 2000. So, on the one hand, the answer would seem to be that this section does not apply to cohabitation, because the section expressly refers to remarriage. Additionally, the 2000 amendment was added after the 1997 law that made cohabitation a terminating event. Many attorneys argue, however, that the policy rationale for the affirmative duty to inform is equally applicable, and that the 2000 amendment was not meant to be so construed, but it was applied to a section that had not otherwise been amended since 1975.
To me, the strongest argument against making the affirmative duty to inform (and with it, the ability to recoup past payments) applicable to cohabitation cases is that the General Assembly has, on several occasions since 2000, had bills in front of it proposing specifically adding cohabitation to Section 20-110, and has repeatedly rejected those bills. To me, that's a clear message that the General Assembly does not consider the law to currently cover cohabitation, and does not want the law to cover cohabitation.
"You previously said that if a judgment debtor declares bankruptcy and gets a discharge, judgments against him from prior to the filing of the bankruptcy petition are discharged and uncollectible (with the possible exception of where there's a judgment lien). Well, I just discovered that a judgment debtor from a lawsuit I won 3 years ago filed bankruptcy 2 years ago. I didn't know at the time, and he didn't list my debt on his petition. What is the status of my judgment?"
Well, the bankruptcy code puts a lot of burden on the creditor. If you are notified of or learn about a bankruptcy while it is pending, it is on you to make sure your debt is listed - you must file an objection if it is not, otherwise you miss out on any payment (if there is any) and your debt is still discharged. If, however, you were not noticed, you did not learn about the bankruptcy, and there is no reasonable way you should be expected to have known about the bankruptcy, then the failure to notify you actually voids any discharge on that debt - even if your debt had been listed. Now there are caveats to this, but the main point is, if you had no notice or knowledge of the bankruptcy, your judgment has not been discharged.
Conclusion
As with last time, I have not answered all of the questions I would like to, and hope to do another post like this again in the near future. As always, I welcome questions (and challenges!) either by e-mail or by comment to a blog post. If you are interested in retaining my services, please e-mail SLeven@thebaldwinlawfirm.com or call (703)281-0134 to set up an initial consultation. Our initial consultations are free for up to half an hour!
Showing posts with label Roommate Law. Show all posts
Showing posts with label Roommate Law. Show all posts
Thursday, September 11, 2014
Tuesday, July 15, 2014
Classic Law is Your Friend: The Law of Living with your Parents, Boyfriend or Girlfriend in Virginia
Today's Classic Blog Posts discuss the legal rights and responsibilities of both "landlords" and "tenants" when someone lives in someone else's house by invitation (be it a grown child living with his parents, an unmarried couple living in a house in only one person's name, etc.). It was originally posted on July 25, 2013 and titled "When Living With Your Parents Goes Bad - Tenancies at Will and the Law."
Where I felt it needed, I have added a few lines here and there. Additions that were not in the original blog post will be in brackets ([]).
As always, before reading this post please review my disclaimer by following the link above or by clicking on this link. As always, the legal principles discussed apply only to the Commonwealth of Virginia.
Introduction
Our generation - "millennials," those born between 1980 and 2000 - has been referred to on occasion as the "boomerang generation" due to the high number of us who go off to college and grad school only to come home and live with our parents. The unfairness of that derogatory term - after all, it's the economy that our parents' generation created that is causing this - aside, the fact is living with your parents past adulthood actually creates some fairly complicated legal issues.
Once you turn 18, you no longer have an inherent "right" to live in your parents' house. However, if you do not have another place that you live, and your parents' house remains your residence, your parents also do not have an inherent "right" to dump your things on the street, change the locks and have you arrested for trespassing if you come back. This is because the moment you turn 18, if you are still living with your parents, you become a "tenant."
Now, if you are an astute reader of my blog, you've already read my article from May [of 2013] about what set of laws is applicable to what kinds of tenancies. As I stated in that post, any tenancy has a lease, even if you don't know it. In most cases, when living with your parents, the lease is neither oral nor written, but rather implied. In other words - you get to live there as long as your parents don't decide otherwise. It's important to note, however, that this situation does not just come up between parents and children. If you let your sibling, boyfriend or girlfriend, or anyone else actually move in with you, without demanding anything in return, you have an implied lease stating the same thing.
What this all means is that if the relationship or living situation goes bad, the legal issues are complicated, and usually neither side recognizes their own rights or responsibilities. This blog post will attempt to clear up what rights each party has in such a situation, and what responsibilities.
What Is a Tenancy at Will?
Again, going back to my blog post from May, you will notice in the list of leases excluded from the Virginia Residential Landlord and Tenant Act is "occupancy by a tenant who pays no rent." So clearly Virginia law recognizes such a thing, and it is governed by the Common Law. In the Common Law a tenancy where the tenant pays no rent is called a "tenancy at will." Much like "employment at will," a tenancy at will is a tenancy which the landlord may terminate at any time, for any reason.
So, if you live with your parents and don't pay rent, you are a tenant at will. The same is true if you live with your boyfriend or girlfriend at his or her house and also don't pay rent. The same is true with any other situation where one person is living at another's house without paying rent as well. This means that if the relationship goes bad, all that needs to happen is that the "landlord" tells the "tenant" "ok, that's it, you're not allowed to live here anymore." Once that happens, the "lease" is terminated and the tenant must move out.
Now, that sounds very simple, and what I said above is that this is complicated, so you recognize that there must be more to this, right? The complications I refer to above come when you ask the follow-up question - what happens if the "tenant" says no, and refuses to leave? Well, astute readers of my blog will again remember my blog post in which I discuss the dangers of "self-help." As I explain in that blog post, when a lease is terminated, but the tenant remains on the property anyways, a residential landlord does not have the right to simply take matters into his or her own hands and forcibly seize the residence. This rule is just as applicable to a tenancy at will as it is to any other residential tenancy. As a result, just because the tenancy has been terminated does not mean that the "landlord" can change the locks, dump the "tenant's" stuff on the street, call the police, etc. The landlord must get a proper eviction.
How to Evict a Tenant at Will
The eviction of a tenant at will runs about the same way as the eviction of any other tenant - you can just begin the process sooner, because you have no requirement for how long you must wait after giving notice that the tenancy is terminated. You can make the statement to the tenant at will that morning, and file your Unlawful Detainer action that afternoon. Heck, you can be standing in line at the courthouse, fill out the Unlawful Detainer complaint, call your tenant at will, terminate the tenancy, and then hang up and hand in the complaint. That would be a little extreme, but that's your right as a landlord in a tenancy at will.
From there, the case would proceed as any Unlawful Detainer would. Eventually you will have a return day, if the tenant appears to contest, you will have a trial, and if you win, then you can get a Writ of Possession which allows the sheriff's office to forcibly evict. Now, the danger here is that most tenancies at will are situations in which the landlord and tenant are both living in the same house at the same time, and the tenant may continue to be there while the Unlawful Detainer action is going on. If you fear violence or other retaliation from the tenant, it may be worthwhile to set up temporary residence elsewhere until the eviction is complete. [If the person actually has already engaged in any action to make you reasonably fear for your life, you can also get a Protective Order, including an Emergency Protective Order to take effect right away that would force the person out of the house in the meantime. For more on that process, you can read my post about protective orders.]
What If I Start Paying Rent?
Many people, especially adult children living with their parents, think they can get around tenancies at will simply by starting to pay rent. However, an offer to the "landlord" to pay rent is only that - an offer. They are in no way obligated to accept that offer, and if they do not, the tenancy remains a tenancy at will. If, however, they do accept that offer, then the change in your situation depends on the frequency of payments. If you are to pay every month, you have a month to month lease now, and it can still be terminated in the same way as any other month to month lease (30 days' notice). However, you also now have the responsibilities of a paying renter. If you miss a payment, your parents can now give you a 5 day pay-or-quit, and if you miss that, they can not only evict you, but can also sue you for your missed payments.
Can I Do Chores Around the House and Call it Rent?
Now we get into a trickier area. Virginia law does recognize rent that is "in kind" rather than cash, meaning you can pay your rent by doing things around the house. However, this is very, very difficult to prove. First, what you do must be done consistently - you need to be able to show that you are doing these chores every week, or every month, around the same time. Second, what you do must not be to your benefit - buying your parents groceries might count, but not if you bought any groceries for yourself at the same time; mowing the lawn does not count because you benefit from a mowed lawn as well; cleaning your room does not count, cleaning your parents' room might. There is an exception, though, to the strict rules regarding "in kind" rent. If you offer to your parents to do these things as rent, and they express their acceptance of that offer, then it would be rent even if you do get some benefit from those chores. However, you still need to do these consistently since, as above, failure to do so could result in a 5 day pay or quit, an eviction, and a lawsuit for "unpaid" rent.
Conclusion
Tenancies at will are a very common tenancy, especially today. Adult children living with their parents, a person moving in with his or her boyfriend or girlfriend, a sibling moving in with another sibling - the list of situations goes on. These tenancies, however, create legal rights and responsibilities for both parties that are often missed, and if a "landlord" in such a tenancy seeks to terminate that tenancy, the pitfalls can be many. If you are involved in a tenancy at will, either as a "landlord" or a "tenant" and need legal advice regarding the termination of that tenancy, eviction, or turning the tenancy into a rent-paying tenancy, please feel free to call (703)281-0134 or e-mail me at sleven@thebaldwinlawfirm.com to set up an initial consultation. The consultation is free for up to half an hour!
Where I felt it needed, I have added a few lines here and there. Additions that were not in the original blog post will be in brackets ([]).
As always, before reading this post please review my disclaimer by following the link above or by clicking on this link. As always, the legal principles discussed apply only to the Commonwealth of Virginia.
Introduction
Our generation - "millennials," those born between 1980 and 2000 - has been referred to on occasion as the "boomerang generation" due to the high number of us who go off to college and grad school only to come home and live with our parents. The unfairness of that derogatory term - after all, it's the economy that our parents' generation created that is causing this - aside, the fact is living with your parents past adulthood actually creates some fairly complicated legal issues.
Once you turn 18, you no longer have an inherent "right" to live in your parents' house. However, if you do not have another place that you live, and your parents' house remains your residence, your parents also do not have an inherent "right" to dump your things on the street, change the locks and have you arrested for trespassing if you come back. This is because the moment you turn 18, if you are still living with your parents, you become a "tenant."
Now, if you are an astute reader of my blog, you've already read my article from May [of 2013] about what set of laws is applicable to what kinds of tenancies. As I stated in that post, any tenancy has a lease, even if you don't know it. In most cases, when living with your parents, the lease is neither oral nor written, but rather implied. In other words - you get to live there as long as your parents don't decide otherwise. It's important to note, however, that this situation does not just come up between parents and children. If you let your sibling, boyfriend or girlfriend, or anyone else actually move in with you, without demanding anything in return, you have an implied lease stating the same thing.
What this all means is that if the relationship or living situation goes bad, the legal issues are complicated, and usually neither side recognizes their own rights or responsibilities. This blog post will attempt to clear up what rights each party has in such a situation, and what responsibilities.
What Is a Tenancy at Will?
Again, going back to my blog post from May, you will notice in the list of leases excluded from the Virginia Residential Landlord and Tenant Act is "occupancy by a tenant who pays no rent." So clearly Virginia law recognizes such a thing, and it is governed by the Common Law. In the Common Law a tenancy where the tenant pays no rent is called a "tenancy at will." Much like "employment at will," a tenancy at will is a tenancy which the landlord may terminate at any time, for any reason.
So, if you live with your parents and don't pay rent, you are a tenant at will. The same is true if you live with your boyfriend or girlfriend at his or her house and also don't pay rent. The same is true with any other situation where one person is living at another's house without paying rent as well. This means that if the relationship goes bad, all that needs to happen is that the "landlord" tells the "tenant" "ok, that's it, you're not allowed to live here anymore." Once that happens, the "lease" is terminated and the tenant must move out.
Now, that sounds very simple, and what I said above is that this is complicated, so you recognize that there must be more to this, right? The complications I refer to above come when you ask the follow-up question - what happens if the "tenant" says no, and refuses to leave? Well, astute readers of my blog will again remember my blog post in which I discuss the dangers of "self-help." As I explain in that blog post, when a lease is terminated, but the tenant remains on the property anyways, a residential landlord does not have the right to simply take matters into his or her own hands and forcibly seize the residence. This rule is just as applicable to a tenancy at will as it is to any other residential tenancy. As a result, just because the tenancy has been terminated does not mean that the "landlord" can change the locks, dump the "tenant's" stuff on the street, call the police, etc. The landlord must get a proper eviction.
How to Evict a Tenant at Will
The eviction of a tenant at will runs about the same way as the eviction of any other tenant - you can just begin the process sooner, because you have no requirement for how long you must wait after giving notice that the tenancy is terminated. You can make the statement to the tenant at will that morning, and file your Unlawful Detainer action that afternoon. Heck, you can be standing in line at the courthouse, fill out the Unlawful Detainer complaint, call your tenant at will, terminate the tenancy, and then hang up and hand in the complaint. That would be a little extreme, but that's your right as a landlord in a tenancy at will.
From there, the case would proceed as any Unlawful Detainer would. Eventually you will have a return day, if the tenant appears to contest, you will have a trial, and if you win, then you can get a Writ of Possession which allows the sheriff's office to forcibly evict. Now, the danger here is that most tenancies at will are situations in which the landlord and tenant are both living in the same house at the same time, and the tenant may continue to be there while the Unlawful Detainer action is going on. If you fear violence or other retaliation from the tenant, it may be worthwhile to set up temporary residence elsewhere until the eviction is complete. [If the person actually has already engaged in any action to make you reasonably fear for your life, you can also get a Protective Order, including an Emergency Protective Order to take effect right away that would force the person out of the house in the meantime. For more on that process, you can read my post about protective orders.]
What If I Start Paying Rent?
Many people, especially adult children living with their parents, think they can get around tenancies at will simply by starting to pay rent. However, an offer to the "landlord" to pay rent is only that - an offer. They are in no way obligated to accept that offer, and if they do not, the tenancy remains a tenancy at will. If, however, they do accept that offer, then the change in your situation depends on the frequency of payments. If you are to pay every month, you have a month to month lease now, and it can still be terminated in the same way as any other month to month lease (30 days' notice). However, you also now have the responsibilities of a paying renter. If you miss a payment, your parents can now give you a 5 day pay-or-quit, and if you miss that, they can not only evict you, but can also sue you for your missed payments.
Can I Do Chores Around the House and Call it Rent?
Now we get into a trickier area. Virginia law does recognize rent that is "in kind" rather than cash, meaning you can pay your rent by doing things around the house. However, this is very, very difficult to prove. First, what you do must be done consistently - you need to be able to show that you are doing these chores every week, or every month, around the same time. Second, what you do must not be to your benefit - buying your parents groceries might count, but not if you bought any groceries for yourself at the same time; mowing the lawn does not count because you benefit from a mowed lawn as well; cleaning your room does not count, cleaning your parents' room might. There is an exception, though, to the strict rules regarding "in kind" rent. If you offer to your parents to do these things as rent, and they express their acceptance of that offer, then it would be rent even if you do get some benefit from those chores. However, you still need to do these consistently since, as above, failure to do so could result in a 5 day pay or quit, an eviction, and a lawsuit for "unpaid" rent.
Conclusion
Tenancies at will are a very common tenancy, especially today. Adult children living with their parents, a person moving in with his or her boyfriend or girlfriend, a sibling moving in with another sibling - the list of situations goes on. These tenancies, however, create legal rights and responsibilities for both parties that are often missed, and if a "landlord" in such a tenancy seeks to terminate that tenancy, the pitfalls can be many. If you are involved in a tenancy at will, either as a "landlord" or a "tenant" and need legal advice regarding the termination of that tenancy, eviction, or turning the tenancy into a rent-paying tenancy, please feel free to call (703)281-0134 or e-mail me at sleven@thebaldwinlawfirm.com to set up an initial consultation. The consultation is free for up to half an hour!
Thursday, May 22, 2014
Virginia Protective Orders and Restraining Orders - A Brief Overview
As always, before reading this post please review my disclaimer by clicking the link above or by clicking on this link. As always, any legal principles discussed here apply only to the Commonwealth of Virginia.
[Please note that as of July 1, 2016, some of the information in this post will be out of date due to changes in the law. For more information, click here.]
Introduction
Those of us who practice family law often find we have a lot to laugh about. We frequently find ourselves dealing with the absurd and the ridiculous - not too surprising, given the nature of what we do. Unfortunately, sometimes situations come up where there is nothing at all to laugh about - where serious abuse has occurred or is threatened, and action has to be taken to protect the well-being, or even the very lives of our clients and/or their children.
In Virginia, the means for this protection is a "protective order." A protective order is largely the same as what is commonly referred to in public usage as a "restraining order." It is an order from the court that bars the respondent (the one against whom the order is sought) from having contact with the petitioner (the one seeking the order), along with a good number of collateral rules. In today's post, I will cover the basics of protective orders in Virginia - but be aware there are many nuances that I simply cannot cover in one blog post.
When Can a Protective Order Be Sought?
So the first question to ask is under what circumstances can you actually get a protective order? Well, you can always get a protective order if you have been subjected by anyone to "an act of violence, force or threat," a broad definition that includes, but is not limited to, forceful detention, sexual assault, physical assault, stalking, or any criminal offense that injures you or puts you in reasonable fear of injury, sexual assault or death. So, stalking, threatening phone calls and e-mails, brandishing a weapon at you, etc., all qualify. The only catch is that you must seek the protective order "within a reasonable time" after the event that qualifies you for one occurs (so, not months later if no new attacks or threats have occurred in the meantime).
Where Do You Go To Get a Protective Order?
So, say you think you qualify for a protective order, where do you get one? Well, the simplest approach is to go down to your courthouse and go to the intake office of the correct court and file for one. If your allegations on their own are sufficient, you will likely get a preliminary protective order, which will take effect immediately, and stay in place until a hearing can be held on a full protective order. Said hearing is required to be held no more than 15 days after the issuance of a preliminary protective order.
Now, how do you know what the "correct court" is? Well, that depends on whether or not you are filing against a "family or household member." If you are, then you go to the Juvenile & Domestic Relations District Court. If you are not, then you go to the General District Court. A "family or household member" is defined as one of the following:
What Happens After the Petition is Filed?
Well, once your petition is filed and your preliminary protective order is issued (and I will say, if you don't have enough to get a preliminary protective order, it's probably not worth pursuing, since it is very unlikely you have enough to win a full protective order), both will be served on the respondent and a hearing will be held. The judge must decide if it is more likely or not that you have been subjected to "an act of violence, force or threat" (which is called "family abuse" if you are in the J&DR Court) within a reasonable time prior to filing. If the judge decides not, then the preliminary protective order is dissolved and your case is dismissed (although you have a right to an appeal and new trial in the Circuit Court).
If the judge decides you have proven your case, a full protective order can be issued, which will last for two years (although you can have it extended for another two if you file before the end of those two years and prove you are still reasonably fearful of the person).
What Does a Protective Order Do?
So, what does a protective order actually do? Well, in every case, it forbids unnecessary contact with you by the respondent, and it forbids the respondent from purchasing or transporting any firearm while the order is in effect (so if he already has a firearm, it must be kept at home at all times) - and requires him to surrender any concealed carry permit he may have. The court has the power to do a large number of other things as well. No matter what the court can also, if it so chooses:
Enforcement of Protective Order
So, after you have a protective order, the question becomes "so what?" Specifically, what makes it more than just a piece of paper? After all, when someone violates a court order, it takes a long time, sometimes months, to get a court hearing to hold them in contempt. So, what good does a Protective Order do?
Well, a Protective Order is different from other court orders - you don't have to follow normal contempt proceedings. This is because violation of a protective order is, itself, a criminal act. If you see the respondent within the distance he's allowed, you can call the police right away and they will arrest him. No further threats or action by him is necessary. That is the value of a protective order.
Even more importantly, protective orders are uploaded into a database and enforced nationwide. Every state has a criminal statute prohibiting violation of a protective order, even another state's protective orders, so if you are in Maryland, and he shows up, you can call the police there and your order will be enforced.
Conclusion
The reality of practicing family law is that sometimes we find ourselves dealing with very unpleasant situations - cases of actual abuse, or, in some ways even worse, completely fabricated abuse. The protective order is a very valuable tool to protect someone who is a victim of abuse, but is also a bit of a whirlwind of a process, and representation by an attorney could be the difference between success and failure. If you wish to prosecute a protective order, or defend against one, 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!
[Please note that as of July 1, 2016, some of the information in this post will be out of date due to changes in the law. For more information, click here.]
Introduction
Those of us who practice family law often find we have a lot to laugh about. We frequently find ourselves dealing with the absurd and the ridiculous - not too surprising, given the nature of what we do. Unfortunately, sometimes situations come up where there is nothing at all to laugh about - where serious abuse has occurred or is threatened, and action has to be taken to protect the well-being, or even the very lives of our clients and/or their children.
In Virginia, the means for this protection is a "protective order." A protective order is largely the same as what is commonly referred to in public usage as a "restraining order." It is an order from the court that bars the respondent (the one against whom the order is sought) from having contact with the petitioner (the one seeking the order), along with a good number of collateral rules. In today's post, I will cover the basics of protective orders in Virginia - but be aware there are many nuances that I simply cannot cover in one blog post.
When Can a Protective Order Be Sought?
So the first question to ask is under what circumstances can you actually get a protective order? Well, you can always get a protective order if you have been subjected by anyone to "an act of violence, force or threat," a broad definition that includes, but is not limited to, forceful detention, sexual assault, physical assault, stalking, or any criminal offense that injures you or puts you in reasonable fear of injury, sexual assault or death. So, stalking, threatening phone calls and e-mails, brandishing a weapon at you, etc., all qualify. The only catch is that you must seek the protective order "within a reasonable time" after the event that qualifies you for one occurs (so, not months later if no new attacks or threats have occurred in the meantime).
Where Do You Go To Get a Protective Order?
So, say you think you qualify for a protective order, where do you get one? Well, the simplest approach is to go down to your courthouse and go to the intake office of the correct court and file for one. If your allegations on their own are sufficient, you will likely get a preliminary protective order, which will take effect immediately, and stay in place until a hearing can be held on a full protective order. Said hearing is required to be held no more than 15 days after the issuance of a preliminary protective order.
Now, how do you know what the "correct court" is? Well, that depends on whether or not you are filing against a "family or household member." If you are, then you go to the Juvenile & Domestic Relations District Court. If you are not, then you go to the General District Court. A "family or household member" is defined as one of the following:
- Your spouse
- Your ex-spouse
- Your parents, step-parents, children, step-children, siblings, half siblings, grandparents and grandchildren
- Your parents-in-law, children-in-law, and siblings-in-law, only if they live in the same house as you
- The other parent of any of your children, whether or not you were ever married to that person
- Anyone who "cohabits" with you, or has "cohabited" with you within the past 12 months, and any of their children if those children simultaneously lived with you
What Happens After the Petition is Filed?
Well, once your petition is filed and your preliminary protective order is issued (and I will say, if you don't have enough to get a preliminary protective order, it's probably not worth pursuing, since it is very unlikely you have enough to win a full protective order), both will be served on the respondent and a hearing will be held. The judge must decide if it is more likely or not that you have been subjected to "an act of violence, force or threat" (which is called "family abuse" if you are in the J&DR Court) within a reasonable time prior to filing. If the judge decides not, then the preliminary protective order is dissolved and your case is dismissed (although you have a right to an appeal and new trial in the Circuit Court).
If the judge decides you have proven your case, a full protective order can be issued, which will last for two years (although you can have it extended for another two if you file before the end of those two years and prove you are still reasonably fearful of the person).
What Does a Protective Order Do?
So, what does a protective order actually do? Well, in every case, it forbids unnecessary contact with you by the respondent, and it forbids the respondent from purchasing or transporting any firearm while the order is in effect (so if he already has a firearm, it must be kept at home at all times) - and requires him to surrender any concealed carry permit he may have. The court has the power to do a large number of other things as well. No matter what the court can also, if it so chooses:
- Define the only circumstances in which contact may be "necessary"
- Forbid the respondent from coming within a certain distance of the petitioner
- Also apply the same contact restrictions to any other members of the petitioner's household (forbidding the respondent from contacting them as well)
- Make additional orders that the court thinks is necessary to protect the petitioner and his family members
- Grant the petitioner exclusive use and possession of the joint residence
- Require the respondent to pay all utility bills for the joint residence
- Grant the petitioner exclusive use of a jointly owned vehicle
- Require the respondent to pay to house the petitioner in a new residence
- Award the petitioner temporary legal and/or physical custody of any children
- Award the petitioner temporary child support and/or spousal support
Enforcement of Protective Order
So, after you have a protective order, the question becomes "so what?" Specifically, what makes it more than just a piece of paper? After all, when someone violates a court order, it takes a long time, sometimes months, to get a court hearing to hold them in contempt. So, what good does a Protective Order do?
Well, a Protective Order is different from other court orders - you don't have to follow normal contempt proceedings. This is because violation of a protective order is, itself, a criminal act. If you see the respondent within the distance he's allowed, you can call the police right away and they will arrest him. No further threats or action by him is necessary. That is the value of a protective order.
Even more importantly, protective orders are uploaded into a database and enforced nationwide. Every state has a criminal statute prohibiting violation of a protective order, even another state's protective orders, so if you are in Maryland, and he shows up, you can call the police there and your order will be enforced.
Conclusion
The reality of practicing family law is that sometimes we find ourselves dealing with very unpleasant situations - cases of actual abuse, or, in some ways even worse, completely fabricated abuse. The protective order is a very valuable tool to protect someone who is a victim of abuse, but is also a bit of a whirlwind of a process, and representation by an attorney could be the difference between success and failure. If you wish to prosecute a protective order, or defend against one, 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!
Thursday, May 8, 2014
Unlawful Evictions in Virginia - What to Do if Your Landlord Takes Matters into His Own Hands
As always, before reading today's post, please review my disclaimer by following the link above or by clicking on this link. As always, all legal principles discussed apply only to the Commonwealth of Virginia.
Introduction
Regular readers of my blog are well aware by now of my opinion about "self help" in the landlord/tenant context - mainly, don't do it. While the remedies available to a landlord for a tenant who "self helps" by withholding rent are obvious (eviction), the remedies for a tenant whose landlord has "self helped" aren't so obvious. If you are in a situation where your landlord has engaged in "self help" and changed your locks, cut off your utilities, or engaged in other actions to force you out of the property without following proper procedures, you might be wondering what remedies you have. Today's blog post will discuss what to do if your landlord evicts you, or attempts to evict you, unlawfully.
VRLTA vs. Common Law Lease
As my regular readers know, usually the first question to ask in a landlord/tenant dispute is whether your lease is governed by the Virginia Residential Landlord and Tenant Act (VRLTA) or by the common law. This situation, however, is an exception, as the rights and remedies available to a tenant are basically identical between the two situations. The VRLTA has Virginia Code Section 55-248.36 which expressly forbids a landlord from retaking possession of property "(i) by willful diminution of services to the tenant by interrupting or causing the interruption of electric, gas, water or other essential service required by the rental agreement or (ii) by refusal to permit the tenant access to the unit unless such refusal is pursuant to a court order for possession." In other words, a VRLTA landlord cannot evict a tenant by shutting down utilities, making the dwelling unlivable, or changing the locks.
For common law leases, however, Code Title 55, Chapter 13 has a similar provision, Virginia Code Section 55-225.1, which was adopted in 1994. Moreover, this is one of those rare situations where the common law also adopts the VLRTA's ban on a waiver of rights. Specifically, in 2012, the following line was added to Virginia Code Section 55-225.1: "A provision included in a rental agreement for a dwelling unit authorizing action prohibited by this section is unenforceable." In other words, this section does not even suffer from the usual non-VRLTA handicap of being waivable in a lease - the Code section applies no matter what the lease says.
Remedies for Unlawful Eviction
So now that we know that unlawful evictions are, in fact, unlawful in any residential lease situation, the next question becomes what you can do about it. Here again the VRLTA provision (Virginia Code Section 55-248.26) and non-VRLTA provision (Virginia Code Section 55-225.2) are nearly identical. In each case, you can go to the General District Court and file a Tenant's Petition for Relief from Unlawful Exclusion.
Usually General District Courts will treat these petitions as emergencies and hear them fairly quickly. When you go to trial, if you can prove that your landlord acted unlawfully (usually the lack of a court order and the fact of the exclusion or diminution of service is sufficient), the court has several remedies it can choose from and will usually accept your desired remedy. Specifically, it may order the landlord (under penalty of contempt) to allow you back into the property or to resume the utility services, or it may terminate the rental agreement with you owing no further rent. If the court terminates the rental agreement, the landlord is required to return your security deposit to you in full, even if there was damage to the property.
The court's remedies do not end there, however. The court will also award you any "actual" damage you suffered. For example, if you had to stay in a hotel, your landlord will have to pay your hotel bill. If you got sick due to the lack of heat or air conditioning, the landlord will have to pay your medical bill. Any actual damage you suffered due to the landlord's actions will be recoverable.
Finally, and perhaps most importantly, the landlord will also have to pay your reasonable attorneys' fees. As a result, you should strongly consider hiring an attorney to represent you in such a case, since there's a good chance the landlord will have to pay the attorney fees (and if the landlord refuses to pay, you can always garnish your own rent - just don't do it without a court order first).
Quick Reminder About Commercial Leases
It is worth again noting that the entire above post applies only to residential leases (leases for homes or apartments whose primary purpose is for you to live there). As discussed in my original "self help" post, landlords in commercial leases (leases for property where the primary purpose is to conduct business) technically are allowed to "self help," even though I generally recommend against it to my commercial landlord clients. As a result, the remedies here are not available to you in a commercial lease unless the lease itself specifically makes them available.
Conclusion
If your landlord unlawfully evicts you from your home, you don't have to just sit there and complain about it. You can take action. Better yet, you can hire an attorney knowing there is a good chance that most of your attorneys' fees will be ordered to be paid by the landlord. If you feel you have been the victim of unlawful eviction, either by exclusion or by diminution of service, please call (703)281-0134 or e-mail me at SLeven@thebaldwinlawfirm.com to set up your initial consultation. Our initial consultations are free for up to half an hour!
Introduction
Regular readers of my blog are well aware by now of my opinion about "self help" in the landlord/tenant context - mainly, don't do it. While the remedies available to a landlord for a tenant who "self helps" by withholding rent are obvious (eviction), the remedies for a tenant whose landlord has "self helped" aren't so obvious. If you are in a situation where your landlord has engaged in "self help" and changed your locks, cut off your utilities, or engaged in other actions to force you out of the property without following proper procedures, you might be wondering what remedies you have. Today's blog post will discuss what to do if your landlord evicts you, or attempts to evict you, unlawfully.
VRLTA vs. Common Law Lease
As my regular readers know, usually the first question to ask in a landlord/tenant dispute is whether your lease is governed by the Virginia Residential Landlord and Tenant Act (VRLTA) or by the common law. This situation, however, is an exception, as the rights and remedies available to a tenant are basically identical between the two situations. The VRLTA has Virginia Code Section 55-248.36 which expressly forbids a landlord from retaking possession of property "(i) by willful diminution of services to the tenant by interrupting or causing the interruption of electric, gas, water or other essential service required by the rental agreement or (ii) by refusal to permit the tenant access to the unit unless such refusal is pursuant to a court order for possession." In other words, a VRLTA landlord cannot evict a tenant by shutting down utilities, making the dwelling unlivable, or changing the locks.
For common law leases, however, Code Title 55, Chapter 13 has a similar provision, Virginia Code Section 55-225.1, which was adopted in 1994. Moreover, this is one of those rare situations where the common law also adopts the VLRTA's ban on a waiver of rights. Specifically, in 2012, the following line was added to Virginia Code Section 55-225.1: "A provision included in a rental agreement for a dwelling unit authorizing action prohibited by this section is unenforceable." In other words, this section does not even suffer from the usual non-VRLTA handicap of being waivable in a lease - the Code section applies no matter what the lease says.
Remedies for Unlawful Eviction
So now that we know that unlawful evictions are, in fact, unlawful in any residential lease situation, the next question becomes what you can do about it. Here again the VRLTA provision (Virginia Code Section 55-248.26) and non-VRLTA provision (Virginia Code Section 55-225.2) are nearly identical. In each case, you can go to the General District Court and file a Tenant's Petition for Relief from Unlawful Exclusion.
Usually General District Courts will treat these petitions as emergencies and hear them fairly quickly. When you go to trial, if you can prove that your landlord acted unlawfully (usually the lack of a court order and the fact of the exclusion or diminution of service is sufficient), the court has several remedies it can choose from and will usually accept your desired remedy. Specifically, it may order the landlord (under penalty of contempt) to allow you back into the property or to resume the utility services, or it may terminate the rental agreement with you owing no further rent. If the court terminates the rental agreement, the landlord is required to return your security deposit to you in full, even if there was damage to the property.
The court's remedies do not end there, however. The court will also award you any "actual" damage you suffered. For example, if you had to stay in a hotel, your landlord will have to pay your hotel bill. If you got sick due to the lack of heat or air conditioning, the landlord will have to pay your medical bill. Any actual damage you suffered due to the landlord's actions will be recoverable.
Finally, and perhaps most importantly, the landlord will also have to pay your reasonable attorneys' fees. As a result, you should strongly consider hiring an attorney to represent you in such a case, since there's a good chance the landlord will have to pay the attorney fees (and if the landlord refuses to pay, you can always garnish your own rent - just don't do it without a court order first).
Quick Reminder About Commercial Leases
It is worth again noting that the entire above post applies only to residential leases (leases for homes or apartments whose primary purpose is for you to live there). As discussed in my original "self help" post, landlords in commercial leases (leases for property where the primary purpose is to conduct business) technically are allowed to "self help," even though I generally recommend against it to my commercial landlord clients. As a result, the remedies here are not available to you in a commercial lease unless the lease itself specifically makes them available.
Conclusion
If your landlord unlawfully evicts you from your home, you don't have to just sit there and complain about it. You can take action. Better yet, you can hire an attorney knowing there is a good chance that most of your attorneys' fees will be ordered to be paid by the landlord. If you feel you have been the victim of unlawful eviction, either by exclusion or by diminution of service, please call (703)281-0134 or e-mail me at SLeven@thebaldwinlawfirm.com to set up your initial consultation. Our initial consultations are free for up to half an hour!
Thursday, August 15, 2013
Feeling "In"secure - Security Deposits and the Law
As always, please review my disclaimer before reading this post 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
One of the simple facts of life is that when we live in an apartment, we wear things out - be it carpet, wall painting, or other parts of the apartment. Long ago, in order to protect themselves from this damage, landlords established the idea of a security deposit - money paid up front by the tenant to help cover the costs of damage done during the tenancy. However, ever since landlords also decided to set security deposits at an amount based on the rent number, numerous questions have arisen. Can I use my deposit as my last month of rent? How do I get my deposit back? What responsibilities does the landlord have?
Security deposits present an interesting facet of landlord/tenant law, and mistakes in how security deposits are administered can have serious legal consequences. This blog post will seek to explain some of the law around security deposits, and how to protect yourself, as a landlord or a tenant, from problems with the use of security deposits.
VRLTA vs. Common Law
Most people will remember from my post in May that there are big differences in many situations between the law regarding leases that are governed by the Virginia Residential Landlord and Tenant Act versus the law regarding leases that are not. Security deposits are no different. VRLTA lease security deposits are governed entirely by Virginia Code Section 55-248.15:1, and these provisions can only be modified by the lease if the lease makes them friendlier to the tenant. Non-VRLTA leases, however, find no equivalent code section in Title 55, Chapter 13, and as such are governed almost entirely by the lease itself. As you might imagine, this means that for a security deposit, knowing which law governs your lease is critical.
Security Deposits Under VRLTA
Honestly, nothing I say here will better prepare you for handling a security deposit under VRLTA than actually reading Virginia Code Section 55-248.15:1 but here are the basics. First of all, the security deposit demanded cannot be more in value than two months' worth of rent. As for the use of your security deposit, once your lease ends, the landlord has 45 days to send you an itemized list of how your security deposit was used, and if there is any of it left, then that is also the landlord's deadline to pay you the remainder. Further, if the landlord takes money out of your security deposit during the rental (so, before you have moved out, perhaps if there's some damage that needed to be fixed while you still lived there), the landlord must notify you that he or she is doing that within 30 days of the landlord doing so.
There are other provisions in there too, but those are the main ones. It is important to notice that failure by the landlord to give notice of the use of the security deposit within 45 days waives the landlord's right to use the security deposit. This means the landlord must then refund the full amount, and if the landlord does not, as is typical for VRLTA, the tenant may sue, and may collect attorneys' fees upon winning.
Security Deposits Under Non-VRLTA Leases
As is typical for non-VRLTA leases, security deposits are governed almost entirely by the lease itself. I cannot count the number of times I've had a consult with a potential client that goes like this:
Potential Client: "It's been 45 days, and I haven't heard from the landlord about my security deposit."
Me: "Well, where in the lease does it say that the landlord has 45 days?"
Potential Client: "I saw it online that it's a law."
So, let me be clear - if that's what you think, then you have seen the VRLTA law, and if your lease is not governed by VRLTA, then that law does not apply to your lease.
When I represent a non-VRLTA landlord and I am dealing with a security deposit, the first thing I do is look at the lease. How does the lease say that the security deposit is to be dealt with? If it doesn't say anything about how the security deposit is actually returned, then as a general rule I follow the VRLTA timeline. Most sophisticated landlords, especially ones with attorneys, will follow the VRLTA timeline, even though they do not have to, because it is a simple set of rules to follow.
But, as I said, that timeline is not manadatory. My advice is that if after 60 days your non-VRLTA landlord still has not contacted you about your security deposit, and the lease is silent about how to handle the security deposit, then you should take action. I recommend writing a letter to the landlord giving about two weeks to send you an itemized list and a refund of the remainder of your security deposit. If you do not get a response, you can file suit for your security deposit. Just be aware that unlike VRLTA, you probably will not be entitled to attorneys' fees.
Can I Use My Security Deposit for Rent?
I also cannot count the number of times I've had someone come to me saying "I don't understand why I got this Pay or Quit - it's my last month, and they have my security deposit. That covers the rent!" The short answer is, no it doesn't.
While this confuses many people because often a security deposit is equal to a month of rent, a security deposit is protection against damage, not against unpaid rent. As a result, you cannot use your security deposit to pay a month of rent. For a non-VRLTA lease, the landlord may agree to let you do that as an exception, but if the landlord does not expressly agree (and usually this needs to be in writing), then you cannot do it. For a VRLTA lease, the landlord does not have the right to let you do that, and after you move out, unpaid rent is the last thing a security deposit can be applied against - meaning you are subject to suit, and probably even to paying the landlord's attorneys' fees, if you just skipped out on your last month of rent.
In short, unless you've got a written agreement from your non-VRLTA landlord saying otherwise, do not assume you can just use your security deposit as your last month of rent.
Conclusion
Security deposits have many pitfalls in the law, and the law governing them is dramatically different between VRLTA and non-VRLTA leases. If you are uncertain about how to handle an issue related to your security deposit, please feel free to call (703)281-0134 or e-mail sleven@thebaldwinlawfirm.com to set up an initial consultation with me. The initial consultation is free for up to half an hour!
Introduction
One of the simple facts of life is that when we live in an apartment, we wear things out - be it carpet, wall painting, or other parts of the apartment. Long ago, in order to protect themselves from this damage, landlords established the idea of a security deposit - money paid up front by the tenant to help cover the costs of damage done during the tenancy. However, ever since landlords also decided to set security deposits at an amount based on the rent number, numerous questions have arisen. Can I use my deposit as my last month of rent? How do I get my deposit back? What responsibilities does the landlord have?
Security deposits present an interesting facet of landlord/tenant law, and mistakes in how security deposits are administered can have serious legal consequences. This blog post will seek to explain some of the law around security deposits, and how to protect yourself, as a landlord or a tenant, from problems with the use of security deposits.
VRLTA vs. Common Law
Most people will remember from my post in May that there are big differences in many situations between the law regarding leases that are governed by the Virginia Residential Landlord and Tenant Act versus the law regarding leases that are not. Security deposits are no different. VRLTA lease security deposits are governed entirely by Virginia Code Section 55-248.15:1, and these provisions can only be modified by the lease if the lease makes them friendlier to the tenant. Non-VRLTA leases, however, find no equivalent code section in Title 55, Chapter 13, and as such are governed almost entirely by the lease itself. As you might imagine, this means that for a security deposit, knowing which law governs your lease is critical.
Security Deposits Under VRLTA
Honestly, nothing I say here will better prepare you for handling a security deposit under VRLTA than actually reading Virginia Code Section 55-248.15:1 but here are the basics. First of all, the security deposit demanded cannot be more in value than two months' worth of rent. As for the use of your security deposit, once your lease ends, the landlord has 45 days to send you an itemized list of how your security deposit was used, and if there is any of it left, then that is also the landlord's deadline to pay you the remainder. Further, if the landlord takes money out of your security deposit during the rental (so, before you have moved out, perhaps if there's some damage that needed to be fixed while you still lived there), the landlord must notify you that he or she is doing that within 30 days of the landlord doing so.
There are other provisions in there too, but those are the main ones. It is important to notice that failure by the landlord to give notice of the use of the security deposit within 45 days waives the landlord's right to use the security deposit. This means the landlord must then refund the full amount, and if the landlord does not, as is typical for VRLTA, the tenant may sue, and may collect attorneys' fees upon winning.
Security Deposits Under Non-VRLTA Leases
As is typical for non-VRLTA leases, security deposits are governed almost entirely by the lease itself. I cannot count the number of times I've had a consult with a potential client that goes like this:
Potential Client: "It's been 45 days, and I haven't heard from the landlord about my security deposit."
Me: "Well, where in the lease does it say that the landlord has 45 days?"
Potential Client: "I saw it online that it's a law."
So, let me be clear - if that's what you think, then you have seen the VRLTA law, and if your lease is not governed by VRLTA, then that law does not apply to your lease.
When I represent a non-VRLTA landlord and I am dealing with a security deposit, the first thing I do is look at the lease. How does the lease say that the security deposit is to be dealt with? If it doesn't say anything about how the security deposit is actually returned, then as a general rule I follow the VRLTA timeline. Most sophisticated landlords, especially ones with attorneys, will follow the VRLTA timeline, even though they do not have to, because it is a simple set of rules to follow.
But, as I said, that timeline is not manadatory. My advice is that if after 60 days your non-VRLTA landlord still has not contacted you about your security deposit, and the lease is silent about how to handle the security deposit, then you should take action. I recommend writing a letter to the landlord giving about two weeks to send you an itemized list and a refund of the remainder of your security deposit. If you do not get a response, you can file suit for your security deposit. Just be aware that unlike VRLTA, you probably will not be entitled to attorneys' fees.
Can I Use My Security Deposit for Rent?
I also cannot count the number of times I've had someone come to me saying "I don't understand why I got this Pay or Quit - it's my last month, and they have my security deposit. That covers the rent!" The short answer is, no it doesn't.
While this confuses many people because often a security deposit is equal to a month of rent, a security deposit is protection against damage, not against unpaid rent. As a result, you cannot use your security deposit to pay a month of rent. For a non-VRLTA lease, the landlord may agree to let you do that as an exception, but if the landlord does not expressly agree (and usually this needs to be in writing), then you cannot do it. For a VRLTA lease, the landlord does not have the right to let you do that, and after you move out, unpaid rent is the last thing a security deposit can be applied against - meaning you are subject to suit, and probably even to paying the landlord's attorneys' fees, if you just skipped out on your last month of rent.
In short, unless you've got a written agreement from your non-VRLTA landlord saying otherwise, do not assume you can just use your security deposit as your last month of rent.
Conclusion
Security deposits have many pitfalls in the law, and the law governing them is dramatically different between VRLTA and non-VRLTA leases. If you are uncertain about how to handle an issue related to your security deposit, please feel free to call (703)281-0134 or e-mail sleven@thebaldwinlawfirm.com to set up an initial consultation with me. The initial consultation is free for up to half an hour!
Thursday, July 25, 2013
When Living With Your Parents Goes Bad - Tenancies at Will and the Law
As always, before reading this post please review my disclaimer by following the link above or by clicking on this link. As always, the legal principles discussed apply only to the Commonwealth of Virginia.
Introduction
Our generation - "millennials," those born between 1980 and 2000 - has been referred to on occasion as the "boomerang generation" due to the high number of us who go off to college and grad school only to come home and live with our parents. The unfairness of that derogatory term - after all, it's the economy that our parents' generation created that is causing this - aside, the fact is living with your parents past adulthood actually creates some fairly complicated legal issues.
Once you turn 18, you no longer have an inherent "right" to live in your parents' house. However, if you do not have another place that you live, and your parents' house remains your residence, your parents also do not have an inherent "right" to dump your things on the street, change the locks and have you arrested for trespassing if you come back. This is because the moment you turn 18, if you are still living with your parents, you become a "tenant."
Now, if you are an astute reader of my blog, you've already read my article from May about what set of laws is applicable to what kinds of tenancies. As I stated in that post, any tenancy has a lease, even if you don't know it. In most cases, when living with your parents, the lease is neither oral nor written, but rather implied. In other words - you get to live there as long as your parents don't decide otherwise. It's important to note, however, that this situation does not just come up between parents and children. If you let your sibling, boyfriend or girlfriend, or anyone else actually move in with you, without demanding anything in return, you have an implied lease stating the same thing.
What this all means is that if the relationship or living situation goes bad, the legal issues are complicated, and usually neither side recognizes their own rights or responsibilities. This blog post will attempt to clear up what rights each party has in such a situation, and what responsibilities.
What Is a Tenancy at Will?
Again, going back to my blog post from May, you will notice in the list of leases excluded from the Virginia Residential Landlord and Tenant Act is "occupancy by a tenant who pays no rent." So clearly Virginia law recognizes such a thing, and it is governed by the Common Law. In the Common Law a tenancy where the tenant pays no rent is called a "tenancy at will." Much like "employment at will," a tenancy at will is a tenancy which the landlord may terminate at any time, for any reason.
So, if you live with your parents and don't pay rent, you are a tenant at will. The same is true if you live with your boyfriend or girlfriend at his or her house and also don't pay rent. The same is true with any other situation where one person is living at another's house without paying rent as well. This means that if the relationship goes bad, all that needs to happen is that the "landlord" tells the "tenant" "ok, that's it, you're not allowed to live here anymore." Once that happens, the "lease" is terminated and the tenant must move out.
Now, that sounds very simple, and what I said above is that this is complicated, so you recognize that there must be more to this, right? The complications I refer to above come when you ask the follow-up question - what happens if the "tenant" says no, and refuses to leave? Well, astute readers of my blog will again remember my blog post from earlier this month in which I discuss the dangers of "self-help." As I explain in that blog post, when a lease is terminated, but the tenant remains on the property anyways, a residential landlord does not have the right to simply take matters into his or her own hands and forcibly seize the residence. This rule is just as applicable to a tenancy at will as it is to any other residential tenancy. As a result, just because the tenancy has been terminated does not mean that the "landlord" can change the locks, dump the "tenant's" stuff on the street, call the police, etc. The landlord must get a proper eviction.
How to Evict a Tenant at Will
The eviction of a tenant at will runs about the same way as the eviction of any other tenant - you can just begin the process sooner, because you have no requirement for how long you must wait after giving notice that the tenancy is terminated. You can make the statement to the tenant at will that morning, and file your Unlawful Detainer action that afternoon. Heck, you can be standing in line at the courthouse, fill out the Unlawful Detainer complaint, call your tenant at will, terminate the tenancy, and then hang up and hand in the complaint. That would be a little extreme, but that's your right as a landlord in a tenancy at will.
From there, the case would proceed as any Unlawful Detainer would. Eventually you will have a return day, if the tenant appears to contest, you will have a trial, and if you win, then you can get a Writ of Possession which allows the sheriff's office to forcibly evict. Now, the danger here is that most tenancies at will are situations in which the landlord and tenant are both living in the same house at the same time, and the tenant may continue to be there while the Unlawful Detainer action is going on. If you fear violence or other retaliation from the tenant, it may be worthwhile to set up temporary residence elsewhere until the eviction is complete.
What If I Start Paying Rent?
Many people, especially adult children living with their parents, think they can get around tenancies at will simply by starting to pay rent. However, an offer to the "landlord" to pay rent is only that - an offer. They are in no way obligated to accept that offer, and if they do not, the tenancy remains a tenancy at will. If, however, they do accept that offer, then the change in your situation depends on the frequency of payments. If you are to pay every month, you have a month to month lease now, and it can still be terminated in the same way an any other month to month lease (30 days' notice). However, you also now have the responsibilities of a paying renter. If you miss a payment, your parents can now give you a 5 day pay-or-quit, and if you miss that, they can not only evict you, but can also sue you for your missed payments.
Can I Do Chores Around the House and Call it Rent?
Now we get into a trickier area. Virginia law does recognize rent that is "in kind" rather than cash, meaning you can pay your rent by doing things around the house. However, this is very, very difficult to prove. First, what you do must be done consistently - you need to be able to show that you are doing these chores every week, or every month, around the same time. Second, what you do must not be to your benefit - buying your parents groceries might count, but not if you bought any groceries for yourself at the same time; mowing the lawn does not count because you benefit from a mowed lawn as well; cleaning your room does not count, cleaning your parents' room might. There is an exception, though, to the strict rules regarding "in kind" rent. If you offer to your parents to do these things as rent, and they express their acceptance of that offer, then it would be rent even if you do get some benefit from those chores. However, you still need to do these consistently since, as above, failure to do so could result in a 5 day pay or quit, an eviction, and a lawsuit for "unpaid" rent.
Conclusion
Tenancies at will are a very common tenancy, especially today. Adult children living with their parents, a person moving in with his or her boyfriend or girlfriend, a sibling moving in with another sibling - the list of situations goes on. These tenancies, however, create legal rights and responsibilities for both parties that are often missed, and if a "landlord" in such a tenancy seeks to terminate that tenancy, the pitfalls can be many. If you are involved in a tenancy at will, either as a "landlord" or a "tenant" and need legal advice regarding the termination of that tenancy, eviction, or turning the tenancy into a rent-paying tenancy, please feel free to call (703)281-0134 or e-mail me at sleven@thebaldwinlawfirm.com to set up an initial consultation. The consultation is free for up to half an hour!
Introduction
Our generation - "millennials," those born between 1980 and 2000 - has been referred to on occasion as the "boomerang generation" due to the high number of us who go off to college and grad school only to come home and live with our parents. The unfairness of that derogatory term - after all, it's the economy that our parents' generation created that is causing this - aside, the fact is living with your parents past adulthood actually creates some fairly complicated legal issues.
Once you turn 18, you no longer have an inherent "right" to live in your parents' house. However, if you do not have another place that you live, and your parents' house remains your residence, your parents also do not have an inherent "right" to dump your things on the street, change the locks and have you arrested for trespassing if you come back. This is because the moment you turn 18, if you are still living with your parents, you become a "tenant."
Now, if you are an astute reader of my blog, you've already read my article from May about what set of laws is applicable to what kinds of tenancies. As I stated in that post, any tenancy has a lease, even if you don't know it. In most cases, when living with your parents, the lease is neither oral nor written, but rather implied. In other words - you get to live there as long as your parents don't decide otherwise. It's important to note, however, that this situation does not just come up between parents and children. If you let your sibling, boyfriend or girlfriend, or anyone else actually move in with you, without demanding anything in return, you have an implied lease stating the same thing.
What this all means is that if the relationship or living situation goes bad, the legal issues are complicated, and usually neither side recognizes their own rights or responsibilities. This blog post will attempt to clear up what rights each party has in such a situation, and what responsibilities.
What Is a Tenancy at Will?
Again, going back to my blog post from May, you will notice in the list of leases excluded from the Virginia Residential Landlord and Tenant Act is "occupancy by a tenant who pays no rent." So clearly Virginia law recognizes such a thing, and it is governed by the Common Law. In the Common Law a tenancy where the tenant pays no rent is called a "tenancy at will." Much like "employment at will," a tenancy at will is a tenancy which the landlord may terminate at any time, for any reason.
So, if you live with your parents and don't pay rent, you are a tenant at will. The same is true if you live with your boyfriend or girlfriend at his or her house and also don't pay rent. The same is true with any other situation where one person is living at another's house without paying rent as well. This means that if the relationship goes bad, all that needs to happen is that the "landlord" tells the "tenant" "ok, that's it, you're not allowed to live here anymore." Once that happens, the "lease" is terminated and the tenant must move out.
Now, that sounds very simple, and what I said above is that this is complicated, so you recognize that there must be more to this, right? The complications I refer to above come when you ask the follow-up question - what happens if the "tenant" says no, and refuses to leave? Well, astute readers of my blog will again remember my blog post from earlier this month in which I discuss the dangers of "self-help." As I explain in that blog post, when a lease is terminated, but the tenant remains on the property anyways, a residential landlord does not have the right to simply take matters into his or her own hands and forcibly seize the residence. This rule is just as applicable to a tenancy at will as it is to any other residential tenancy. As a result, just because the tenancy has been terminated does not mean that the "landlord" can change the locks, dump the "tenant's" stuff on the street, call the police, etc. The landlord must get a proper eviction.
How to Evict a Tenant at Will
The eviction of a tenant at will runs about the same way as the eviction of any other tenant - you can just begin the process sooner, because you have no requirement for how long you must wait after giving notice that the tenancy is terminated. You can make the statement to the tenant at will that morning, and file your Unlawful Detainer action that afternoon. Heck, you can be standing in line at the courthouse, fill out the Unlawful Detainer complaint, call your tenant at will, terminate the tenancy, and then hang up and hand in the complaint. That would be a little extreme, but that's your right as a landlord in a tenancy at will.
From there, the case would proceed as any Unlawful Detainer would. Eventually you will have a return day, if the tenant appears to contest, you will have a trial, and if you win, then you can get a Writ of Possession which allows the sheriff's office to forcibly evict. Now, the danger here is that most tenancies at will are situations in which the landlord and tenant are both living in the same house at the same time, and the tenant may continue to be there while the Unlawful Detainer action is going on. If you fear violence or other retaliation from the tenant, it may be worthwhile to set up temporary residence elsewhere until the eviction is complete.
What If I Start Paying Rent?
Many people, especially adult children living with their parents, think they can get around tenancies at will simply by starting to pay rent. However, an offer to the "landlord" to pay rent is only that - an offer. They are in no way obligated to accept that offer, and if they do not, the tenancy remains a tenancy at will. If, however, they do accept that offer, then the change in your situation depends on the frequency of payments. If you are to pay every month, you have a month to month lease now, and it can still be terminated in the same way an any other month to month lease (30 days' notice). However, you also now have the responsibilities of a paying renter. If you miss a payment, your parents can now give you a 5 day pay-or-quit, and if you miss that, they can not only evict you, but can also sue you for your missed payments.
Can I Do Chores Around the House and Call it Rent?
Now we get into a trickier area. Virginia law does recognize rent that is "in kind" rather than cash, meaning you can pay your rent by doing things around the house. However, this is very, very difficult to prove. First, what you do must be done consistently - you need to be able to show that you are doing these chores every week, or every month, around the same time. Second, what you do must not be to your benefit - buying your parents groceries might count, but not if you bought any groceries for yourself at the same time; mowing the lawn does not count because you benefit from a mowed lawn as well; cleaning your room does not count, cleaning your parents' room might. There is an exception, though, to the strict rules regarding "in kind" rent. If you offer to your parents to do these things as rent, and they express their acceptance of that offer, then it would be rent even if you do get some benefit from those chores. However, you still need to do these consistently since, as above, failure to do so could result in a 5 day pay or quit, an eviction, and a lawsuit for "unpaid" rent.
Conclusion
Tenancies at will are a very common tenancy, especially today. Adult children living with their parents, a person moving in with his or her boyfriend or girlfriend, a sibling moving in with another sibling - the list of situations goes on. These tenancies, however, create legal rights and responsibilities for both parties that are often missed, and if a "landlord" in such a tenancy seeks to terminate that tenancy, the pitfalls can be many. If you are involved in a tenancy at will, either as a "landlord" or a "tenant" and need legal advice regarding the termination of that tenancy, eviction, or turning the tenancy into a rent-paying tenancy, please feel free to call (703)281-0134 or e-mail me at sleven@thebaldwinlawfirm.com to set up an initial consultation. The consultation is free for up to half an hour!
Tuesday, July 2, 2013
Changing the Locks, Withholding Rent and Other Mistakes - Your Lease, "Self-Help" and the Law
As always, before reading this post, please review my disclaimer by following the link above or by clicking on this link. As always, legal principles discussed in this post are applicable only to the Commonwealth of Virginia.
[UPDATE: Some information contained in this blog post is no longer accurate due to subsequent changes in the law. Please see my changes in the law blog post for 2019 for more information.]
Introduction
I cannot count the number of times I am called upon for a consultation or hear about a case in which the landlord or the tenant has committed some very egregious violations of the lease. I'm nodding along, interested in all the terrible things the other party has done, and then I get to the part I am afraid of. If it's a landlord, I hear "so I kicked them out and changed the locks." If it's a tenant, I hear "so I'm withholding rent until they fix it." That's when a potentially good case goes bad.
What I've referred to above is what we in the landlord/tenant world call "self-help." Self-help is when, instead of going through the courts, the aggrieved party simply takes matters into his or her own hands. It's faster, cheaper and easier than going through the courts, so it's no wonder that it's so appealing. And it works great - if the other party has no idea what their rights are, what the law is, and what remedies they may have available to them. If they do, though, then you've gone from being on the right side of the law to being on the wrong side, and it can cost you, big time.
This blog post will attempt to cover a little bit about the bad things that can happen to you if you try to "self-help," the one major exception to that rule, and a brief discussion of the correct process.
VRLTA vs. Common Law/Chapter 13 Leases
Regular readers of my blog will remember my post from some time ago covering the difference between leases under the Virginia Residential Landlord and Tenant Act (VRLTA) or leases under the Common Law or Chapter 13 of Title 55 of the Code of Virginia. As you may recall, while rights and remedies under VRLTA cannot be waived, most common law/chapter 13 rights can be waived in the lease. Astute readers, however, will notice that I mentioned that most rights under the common law/chapter 13 can be waived - the implication being that there are some that cannot. The right to have the court as a bulwark against abuse, and subsequently the prohibition on self-help, is generally not waivable in even a common law/chapter 13 lease. As a result, the rules in this post are equally applicable to VRLTA leases and common law/chapter 13 leases.
The Danger of Landlord Self-Help
If your tenant stops paying the rent, violates your lease, or otherwise causes trouble, and your response is to take possession of the property yourself, you could be in for a world of trouble. Your tenant can file suit and get a court to actually order you to give possession back. You will likely be charged money for the loss of use and "quiet enjoyment" of the property while the tenant was deprived of it. You will also likely be assessed the tenant's attorneys' fees. Finally, heaven help you if you did anything to the tenant's personal property.
In short, self-help as a landlord will likely end up costing you far more than whatever cost you would incur by waiting and following proper procedures.
The Danger of Tenant Self-Help
The most common form of tenant self-help when the landlord violates the lease is to simply stop paying rent. Guess what - if you do that, you can still be evicted for non-payment of rent. You might ultimately not have to pay the rent that you withheld, but by going outside the proper channels you will likely be evicted, be assessed your landlord's attorneys' fees, and you may very well still have to pay that rent. Again, self-help will likely end up costing you far more than the cost of waiting and following proper procedures.
The Proper Procedures
As a landlord or tenant, there are proper legal procedures to take. As a landlord, there are three types of notices you must give first: 5 day pay or quit, 21/30 notice, or 30 day notice. The 5 day pay or quit is for non-payment of rent only. This gives the tenant 5 days to get paid in full or the lease terminates. The 21/30 notice is for a remediable breach of the lease which gives the tenant 21 days to fix the breach, or else the lease terminates 30 days following the notice. The 30 day notice is for a non-remediable breach which simply notifies the tenant that the lease will terminate after 30 days. If, under any of these notices, the lease does terminate and the tenant remains on the premises, you must file an Unlawful Detainer action in court. If you win that action, and the tenant remains in possession, then you must file for a writ of possession. Only upon the execution of the writ of possession may you forcefully re-take possession of the property.
As a tenant, you also have three types of notices available to you: an "assertion" notice, a 21/30 notice, or a 30 day notice. In an "assertion" notice you simply notify, in writing, the landlord of the problem and allow the landlord a "reasonable" amount of time to fix it. A 21/30 notice is for remediable breaches of the lease which, again, allows the landlord 21 days to fix the breach or else the lease terminates 30 days after the notice - you must still pay your rent while this notice is pending. A 30 day notice is for a non-remediable breach, and again, the lease will terminate automatically after 30 days - but you must still pay your rent while this notice is pending. For the latter two notices, if the lease does, in fact, terminate after those 30 days, then, and only then, you may stop paying rent, but you also must vacate the property by the end of those 30 days. For the "assertion" notice, once a "reasonable" time has passed, you can go to the General District Court and file a Tenant's Assertion laying out the problems. You will then continue to pay rent, only you pay it to the court to go into the court's escrow account. The judge ruling on the case will decide whether to remit some or all of that money to you, and will also decide what corrective actions the landlord must take (or if the lease needs to just terminate).
These procedures can be complicated, and they usually take a couple of months to complete, but they are required legal procedures. Not following these procedures could very well end up leaving you in a world of trouble.
Commercial Leases - The Exception
I said in the introduction there is a major exception. That would be commercial leases. Commercial leases are leases to persons or companies who do not plan to live on the premises, but instead plan to run a business out of the premises. A landlord (but not a tenant) may engage in "self-help" in some cases in a commercial lease. However, that right must be clearly delineated in the lease, and, unless there are specific rules in the lease for how personal property is to be handled, the landlord must be very careful to protect the personal property of the tenant if engaging in self-help. In my opinion, it's always safer to go the legal, non-self-help route, even in commercial lease situations, because unless you have an airtight lease, there's always an opportunity for trouble with self-help.
Conclusion
If you are in a situation with a bad landlord or tenant, self-help is not the answer. There is a specific legal process you generally must, and pretty much always should, follow. If you would like assistance in ensuring that you are following all legal steps properly in your landlord/tenant dispute, please feel free to call (703)281-0134, or e-mail me at sleven@thebaldwinlawfirm.com to set up your initial consultation. It's free for up to half an hour!
[UPDATE: Some information contained in this blog post is no longer accurate due to subsequent changes in the law. Please see my changes in the law blog post for 2019 for more information.]
Introduction
I cannot count the number of times I am called upon for a consultation or hear about a case in which the landlord or the tenant has committed some very egregious violations of the lease. I'm nodding along, interested in all the terrible things the other party has done, and then I get to the part I am afraid of. If it's a landlord, I hear "so I kicked them out and changed the locks." If it's a tenant, I hear "so I'm withholding rent until they fix it." That's when a potentially good case goes bad.
What I've referred to above is what we in the landlord/tenant world call "self-help." Self-help is when, instead of going through the courts, the aggrieved party simply takes matters into his or her own hands. It's faster, cheaper and easier than going through the courts, so it's no wonder that it's so appealing. And it works great - if the other party has no idea what their rights are, what the law is, and what remedies they may have available to them. If they do, though, then you've gone from being on the right side of the law to being on the wrong side, and it can cost you, big time.
This blog post will attempt to cover a little bit about the bad things that can happen to you if you try to "self-help," the one major exception to that rule, and a brief discussion of the correct process.
VRLTA vs. Common Law/Chapter 13 Leases
Regular readers of my blog will remember my post from some time ago covering the difference between leases under the Virginia Residential Landlord and Tenant Act (VRLTA) or leases under the Common Law or Chapter 13 of Title 55 of the Code of Virginia. As you may recall, while rights and remedies under VRLTA cannot be waived, most common law/chapter 13 rights can be waived in the lease. Astute readers, however, will notice that I mentioned that most rights under the common law/chapter 13 can be waived - the implication being that there are some that cannot. The right to have the court as a bulwark against abuse, and subsequently the prohibition on self-help, is generally not waivable in even a common law/chapter 13 lease. As a result, the rules in this post are equally applicable to VRLTA leases and common law/chapter 13 leases.
The Danger of Landlord Self-Help
If your tenant stops paying the rent, violates your lease, or otherwise causes trouble, and your response is to take possession of the property yourself, you could be in for a world of trouble. Your tenant can file suit and get a court to actually order you to give possession back. You will likely be charged money for the loss of use and "quiet enjoyment" of the property while the tenant was deprived of it. You will also likely be assessed the tenant's attorneys' fees. Finally, heaven help you if you did anything to the tenant's personal property.
In short, self-help as a landlord will likely end up costing you far more than whatever cost you would incur by waiting and following proper procedures.
The Danger of Tenant Self-Help
The most common form of tenant self-help when the landlord violates the lease is to simply stop paying rent. Guess what - if you do that, you can still be evicted for non-payment of rent. You might ultimately not have to pay the rent that you withheld, but by going outside the proper channels you will likely be evicted, be assessed your landlord's attorneys' fees, and you may very well still have to pay that rent. Again, self-help will likely end up costing you far more than the cost of waiting and following proper procedures.
The Proper Procedures
As a landlord or tenant, there are proper legal procedures to take. As a landlord, there are three types of notices you must give first: 5 day pay or quit, 21/30 notice, or 30 day notice. The 5 day pay or quit is for non-payment of rent only. This gives the tenant 5 days to get paid in full or the lease terminates. The 21/30 notice is for a remediable breach of the lease which gives the tenant 21 days to fix the breach, or else the lease terminates 30 days following the notice. The 30 day notice is for a non-remediable breach which simply notifies the tenant that the lease will terminate after 30 days. If, under any of these notices, the lease does terminate and the tenant remains on the premises, you must file an Unlawful Detainer action in court. If you win that action, and the tenant remains in possession, then you must file for a writ of possession. Only upon the execution of the writ of possession may you forcefully re-take possession of the property.
As a tenant, you also have three types of notices available to you: an "assertion" notice, a 21/30 notice, or a 30 day notice. In an "assertion" notice you simply notify, in writing, the landlord of the problem and allow the landlord a "reasonable" amount of time to fix it. A 21/30 notice is for remediable breaches of the lease which, again, allows the landlord 21 days to fix the breach or else the lease terminates 30 days after the notice - you must still pay your rent while this notice is pending. A 30 day notice is for a non-remediable breach, and again, the lease will terminate automatically after 30 days - but you must still pay your rent while this notice is pending. For the latter two notices, if the lease does, in fact, terminate after those 30 days, then, and only then, you may stop paying rent, but you also must vacate the property by the end of those 30 days. For the "assertion" notice, once a "reasonable" time has passed, you can go to the General District Court and file a Tenant's Assertion laying out the problems. You will then continue to pay rent, only you pay it to the court to go into the court's escrow account. The judge ruling on the case will decide whether to remit some or all of that money to you, and will also decide what corrective actions the landlord must take (or if the lease needs to just terminate).
These procedures can be complicated, and they usually take a couple of months to complete, but they are required legal procedures. Not following these procedures could very well end up leaving you in a world of trouble.
Commercial Leases - The Exception
I said in the introduction there is a major exception. That would be commercial leases. Commercial leases are leases to persons or companies who do not plan to live on the premises, but instead plan to run a business out of the premises. A landlord (but not a tenant) may engage in "self-help" in some cases in a commercial lease. However, that right must be clearly delineated in the lease, and, unless there are specific rules in the lease for how personal property is to be handled, the landlord must be very careful to protect the personal property of the tenant if engaging in self-help. In my opinion, it's always safer to go the legal, non-self-help route, even in commercial lease situations, because unless you have an airtight lease, there's always an opportunity for trouble with self-help.
Conclusion
If you are in a situation with a bad landlord or tenant, self-help is not the answer. There is a specific legal process you generally must, and pretty much always should, follow. If you would like assistance in ensuring that you are following all legal steps properly in your landlord/tenant dispute, please feel free to call (703)281-0134, or e-mail me at sleven@thebaldwinlawfirm.com to set up your initial consultation. It's free for up to half an hour!
Monday, June 10, 2013
Roommates: Can't Live With Them, Can't Afford to Live Without Them - The Law of Renting with a Pal
As always, please review my disclaimer before reading this blog post. It can be found by following the link at the top of this page or by clicking on this link. As always, any legal principles discussed involve only the laws of the Commonwealth of Virginia.
Introduction
Fresh out of college and ready to face the real world, many of us face that most basic of questions - where are we going to sleep at night? With a mountain of student loan debt, practically no job security, and probably about $0 to your name, buying a home probably is not your immediate plan, so renting seems the way to go. In today's market, however, especially in higher demand areas, renting on your own just may not be feasible either, so now you need a roommate.
What you may not realize, however, is that having a roommate may not be as simple as it seems. For example, if both of you sign the lease, that does NOT mean that you are each legally responsible for half the rent. In fact, unless the lease says otherwise, if your roommate skips town you could suddenly become responsible for the whole rent, and continuing to pay only half the rent could result in your eviction, a judgment against you, and a nasty notation on your credit report that follows you for years and makes finding your next rental apartment next to impossible.
There are two ways to potentially protect yourself from this problem, however. First is to insist that the lease you sign with your landlord delineate which roommate is responsible for what - including a breakdown of who owes how much rent. This is usually not practical, however, as it shifts the burden of resolving conflicts between you and your roommate to your landlord. As we are largely in a landlord's rental market today, finding a single renter would just be easier, so most landlords will be unwilling to do this. Second, then, is to require your roommate to sign a Roommate Agreement, which creates a contractual relationship between the two of you and provides at least some protection in the event of a dispute between you.
In this blog post, I hope to provide some basic advice regarding Roommate Agreements, why you need them, and what should be in them.
Why a Roommate Agreement?
Imagine, if you will, that you and your best friend decide to live together. You both agree to split the rent, and you both sign a lease and move into your new apartment. Suddenly, your best friend loses her job, and can't afford to pay her share of the rent anymore. You continue paying your half, hoping that she and the landlord can work something out - after all, she is your friend. Then, suddenly, you get served with court papers seeking to evict both of you. You go to court, argue that you were only supposed to pay half the rent, so nothing should happen to you, and yet judgment is entered against you both for your roommate's unpaid rent, and you are both evicted. Then, a month later, you get notice from the court that, as your landlord knows your friend is unemployed, your wages are being garnished to pay the judgment.
As shocking as it may seem, this happens every day, and when you sign a lease with a roommate, this is exactly what you open yourself up to. Moreover, if you do not have a roommate agreement, you may have no right to recover any of that money from your roommate. You can file a suit against your roommate seeking contribution, but without a set contract a court may very well only give you a partial judgment or no judgment at all. A roommate agreement can help protect you by requiring your roommate to reimburse you for any damages you suffer as a result of her non-payment of her share of the rent.
What Should Be In a Roommate Agreement?
So, now that you understand why a roommate agreement might be necessary, you might be wondering what it should contain. Remember, first and foremost, a signed roommate agreement is a legally binding contract like any other, so do not sign one that contains provisions you are uncomfortable with - chances are they will be enforced if necessary.
The first provision every roommate agreement should have is a payment clause. This clause should break down who is responsible for what share of the rent, utilities, late fees, and any other costs associated with your living arrangement. This clause should also detail deadlines to pay your share, and to whom you pay. Will one of you be responsible for paying the whole amount to the landlord while the other pays that person back for her share, or will you both pay the landlord directly? Think about what works easiest for you. If one of you is much more reliably prompt than the other, that may be the best arrangement, but if you don't like the idea of harassing your friend for money, each of you sending rent straight to the landlord may be better.
The second provision every roommate agreement should have is an indemnity clause. In an indemnity clause, each of you will promise to be responsible to the other for any damage they suffer as a result of your actions. This goes beyond mere payment. If your roommate violates the lease in another manner that causes you both to be evicted, you could then go after your roommate for your costs in finding a new place, the difference in rent you are paying, lost wages if you had to miss work, etc. This is an additional layer of protection if your roommate's actions cause problems for you.
Depending on your situation, it may not be necessary to have provisions beyond those two, but provisions regarding chores, household responsibilities, and other relevant matters are certainly allowed as well. Just beware that remedies for breaches of those provisions (for example, if your roommate doesn't do the dishes when she's supposed to under the agreement) might be minimal, and not worth the cost of pursuing.
Dangers of Roommate Situations
Even a Roommate Agreement cannot protect you from all possibilities. The scenario outlined in the "Why a Roommate Agreement" situation above could still happen if you have a roommate agreement. Then, when you pursue your (presumably now former) roommate for her share, she could declare bankruptcy, flee to a location such that you cannot find her, or simply remain a judgment debtor from whom judgment is basically uncollectable (because she makes too little money, for example). As a result, you would still get stuck with the bill, even with a very well written roommate agreement.
Because of this risk, you should assess carefully who you are considering rooming with. How well do you know this person and his or her payment history? How reliable are they? In the end, a roommate situation will always entail some risk, no matter how well you prepare.
Conclusion
Renting with a roommate is a risky proposition, but in this day and age, it is often necessary. A roommate agreement can protect you from many of the dangers associated with this situation, however. If you would like to put together a roommate agreement, review one that has been proposed to you, or are otherwise in a dispute with a current or former roommate, please feel free to call (703)281-0134 or e-mail SLeven@thebaldwinlawfirm.com to set up an appointment with me. Your initial consultation is free for up to half an hour!
Introduction
Fresh out of college and ready to face the real world, many of us face that most basic of questions - where are we going to sleep at night? With a mountain of student loan debt, practically no job security, and probably about $0 to your name, buying a home probably is not your immediate plan, so renting seems the way to go. In today's market, however, especially in higher demand areas, renting on your own just may not be feasible either, so now you need a roommate.
What you may not realize, however, is that having a roommate may not be as simple as it seems. For example, if both of you sign the lease, that does NOT mean that you are each legally responsible for half the rent. In fact, unless the lease says otherwise, if your roommate skips town you could suddenly become responsible for the whole rent, and continuing to pay only half the rent could result in your eviction, a judgment against you, and a nasty notation on your credit report that follows you for years and makes finding your next rental apartment next to impossible.
There are two ways to potentially protect yourself from this problem, however. First is to insist that the lease you sign with your landlord delineate which roommate is responsible for what - including a breakdown of who owes how much rent. This is usually not practical, however, as it shifts the burden of resolving conflicts between you and your roommate to your landlord. As we are largely in a landlord's rental market today, finding a single renter would just be easier, so most landlords will be unwilling to do this. Second, then, is to require your roommate to sign a Roommate Agreement, which creates a contractual relationship between the two of you and provides at least some protection in the event of a dispute between you.
In this blog post, I hope to provide some basic advice regarding Roommate Agreements, why you need them, and what should be in them.
Why a Roommate Agreement?
Imagine, if you will, that you and your best friend decide to live together. You both agree to split the rent, and you both sign a lease and move into your new apartment. Suddenly, your best friend loses her job, and can't afford to pay her share of the rent anymore. You continue paying your half, hoping that she and the landlord can work something out - after all, she is your friend. Then, suddenly, you get served with court papers seeking to evict both of you. You go to court, argue that you were only supposed to pay half the rent, so nothing should happen to you, and yet judgment is entered against you both for your roommate's unpaid rent, and you are both evicted. Then, a month later, you get notice from the court that, as your landlord knows your friend is unemployed, your wages are being garnished to pay the judgment.
As shocking as it may seem, this happens every day, and when you sign a lease with a roommate, this is exactly what you open yourself up to. Moreover, if you do not have a roommate agreement, you may have no right to recover any of that money from your roommate. You can file a suit against your roommate seeking contribution, but without a set contract a court may very well only give you a partial judgment or no judgment at all. A roommate agreement can help protect you by requiring your roommate to reimburse you for any damages you suffer as a result of her non-payment of her share of the rent.
What Should Be In a Roommate Agreement?
So, now that you understand why a roommate agreement might be necessary, you might be wondering what it should contain. Remember, first and foremost, a signed roommate agreement is a legally binding contract like any other, so do not sign one that contains provisions you are uncomfortable with - chances are they will be enforced if necessary.
The first provision every roommate agreement should have is a payment clause. This clause should break down who is responsible for what share of the rent, utilities, late fees, and any other costs associated with your living arrangement. This clause should also detail deadlines to pay your share, and to whom you pay. Will one of you be responsible for paying the whole amount to the landlord while the other pays that person back for her share, or will you both pay the landlord directly? Think about what works easiest for you. If one of you is much more reliably prompt than the other, that may be the best arrangement, but if you don't like the idea of harassing your friend for money, each of you sending rent straight to the landlord may be better.
The second provision every roommate agreement should have is an indemnity clause. In an indemnity clause, each of you will promise to be responsible to the other for any damage they suffer as a result of your actions. This goes beyond mere payment. If your roommate violates the lease in another manner that causes you both to be evicted, you could then go after your roommate for your costs in finding a new place, the difference in rent you are paying, lost wages if you had to miss work, etc. This is an additional layer of protection if your roommate's actions cause problems for you.
Depending on your situation, it may not be necessary to have provisions beyond those two, but provisions regarding chores, household responsibilities, and other relevant matters are certainly allowed as well. Just beware that remedies for breaches of those provisions (for example, if your roommate doesn't do the dishes when she's supposed to under the agreement) might be minimal, and not worth the cost of pursuing.
Dangers of Roommate Situations
Even a Roommate Agreement cannot protect you from all possibilities. The scenario outlined in the "Why a Roommate Agreement" situation above could still happen if you have a roommate agreement. Then, when you pursue your (presumably now former) roommate for her share, she could declare bankruptcy, flee to a location such that you cannot find her, or simply remain a judgment debtor from whom judgment is basically uncollectable (because she makes too little money, for example). As a result, you would still get stuck with the bill, even with a very well written roommate agreement.
Because of this risk, you should assess carefully who you are considering rooming with. How well do you know this person and his or her payment history? How reliable are they? In the end, a roommate situation will always entail some risk, no matter how well you prepare.
Conclusion
Renting with a roommate is a risky proposition, but in this day and age, it is often necessary. A roommate agreement can protect you from many of the dangers associated with this situation, however. If you would like to put together a roommate agreement, review one that has been proposed to you, or are otherwise in a dispute with a current or former roommate, please feel free to call (703)281-0134 or e-mail SLeven@thebaldwinlawfirm.com to set up an appointment with me. Your initial consultation is free for up to half an hour!
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