Relevant Changes in Virginia Law - 2020 Edition

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

Introduction

Every year, I put together a blog post with changes to the law that have occurred in Virginia relevant to my blog.  Usually I do this in the spring, after the new laws are enacted but before they go into effect, but as you may have noticed there is a bit of a pandemic going on, so my time to put together this blog post has been limited.

There are actually a lot of interesting changes in law happening in Virginia this year - this was inevitable with the change in party control that happened following the 2019 elections - but many of the big ticket items are not particularly relevant to this blog.  I do recommend, however, that you read one of the many fine articles written about some of these laws, as they impact everything from Confederate statues to gun control to casino gambling to state holidays to marijuana possession.  As usual, though, this blog post will just focus on changes in the law that impact the topics covered here.

The laws referenced herein all went into effect on July 1, 2020.

Step-Parent Adoption Background Check

One change in the law involves a law that didn't get enacted.  In my 2018 law change update, I noted that a new law had passed requiring the step-parent in all step-parent adoptions to pass a criminal background check.  As I noted at the time, however, in recognition of the disruption this change might cause, the law was effectively a test, and expired July 1, 2020.  Sure enough, the requirement proved exactly as disruptive and problematic as I feared it would, and the bills seeking to extend this law all failed - so as a result, the step-parent adoption background check provision was allowed to expire.

Pregnancy Expenses in Child Support

There is often a big blind spot in child support law, particularly involving unmarried parents, where a father only has to support the child after the child is born, while the mother has to bear all the costs of having the child.  The Virginia General Assembly looked to address some of that imbalance this year with the adoption of SB 428.  Under the terms of this law, if a petition for child support is filed within six months of a child being born, the noncustodial parent can be ordered to pay, in proportion to the parties' gross incomes, any "reasonable and necessary" expenses of the mother's pregnancy and childbirth that was not covered by insurance.  Now, the statute does not define these expenses and as a result, they are arguably not limited to medical expenses, but could include things like child birth classes, pre-natal vitamins, and other such costs of a pregnancy.

Modification of Contractual Spousal Support Language

Once again, in my 2018 law change update I noted that a rather major change was made to the law regarding modification of spousal support that had been set by a contract or property settlement agreement.  As I noted at the time, the law had previously been that if the contract did not lay out exactly how the spousal support was to be modifiable, then the support could not be modified no matter what.  In 2018, the law was changed so that the default was that for all new contracts/agreements made after July 1, 2018, the default was that such support could be modified the same was as if it had been set by a court instead of an agreement, unless the agreement contained specific language that was included in the new Code Section to make the support non-modifiable.  Well, this caused some problems because a number of people who really did want their spousal support agreement to be non-modifiable failed to use the exact language stated in the Code, and so the support was found to be modifiable even though this was clearly not the intent of the parties.  As a result, this year the General Assembly passed HB 1501 which again amended the law.  Now, it remains the default that spousal support set in agreement is modifiable (as was put in place by the 2018 law change), but now, to make that support non-modifiable, you just have to have language in the agreement indicating that it is non-modifiable, you do not have to use the specific words contained in the law.

Pendente Lite Spousal Support Guidelines

As has been discussed on my blog previously, if you need spousal support while waiting for your divorce to finalize, you can file for pendente lite spousal support - a motion that provides support just temporarily, until the case concludes.  I noted in my previous blog post that pendente lite spousal support in the J&DR Court involves a formula for setting the support amount, and that in the Circuit Court (where divorce cases are held) many localities have adopted their own formulas but there is no uniform rule.  HB 1500 has now changed this by applying the J&DR formula to pendente lite hearings in the Circuit Court as well.  It also adjusted the formula to take into account changes in tax law, so the formula is now 26% of the payor's gross income less 58% of the payee's gross income where there is also at least one minor child in common between the parties, and 27% of the payor's gross income less 50% of the payee's gross income where there are no minor children in common.  As before, however, these formulas apply only to pendente lite rulings - the final determination of spousal support is still made without reference to any formulas.

Tenants' Rights and Responsibilities

One of the biggest disadvantages tenants have in landlord/tenant law is a simple lack of knowledge of the law that a more sophisticated landlord usually has.  HB 393 seeks to address some of that imbalance by requiring the Virginia Department of Housing and Community Development to put together a plain language list of tenants' rights and responsibilities.  The law now requires that this list be provided by a landlord to all prospective tenants before signing a lease, and prohibits the landlord from taking any legal action against tenants (including eviction) for a lease violation unless and until the rights and responsibilities list has been provided to the tenant.

Fifth Amendment and Adultery

As I have addressed before, adultery remains highly relevant to Virginia family law, but proving adultery has occurred is exceptionally difficult because adultery, while almost never enforced, remains technically a crime in Virginia, and as a result a party who commits adultery can avoid having to admit having done so by pleading the Fifth.  This has been a matter of some concern and consternation in the family law field for some time, leading to a range of potential solutions to decrease the cost of divorce litigation while easing the process for a spouse to prove that he or she was a victim of adultery.  This year, the General Assembly looked to do that by adopting SB 433.  SB 433 amends a provision of Virginia Law that prohibits courts from holding it against a party to a civil case if that party invokes a constitutional right (which would include pleading the Fifth).  Now there is a specific exception holding that in any civil case for divorce, spousal support, custody, or visitation filed after July 1, 2020, "if a party or witness refuses to answer a question about [adultery] on the ground that the testimony might be self-incriminating, the [court] may draw an adverse inference from such refusal."  In other words, the judge can (but is not required to) decide that you pleading the Fifth when asked about adultery means you are, in fact, guilty of adultery.  This is a major change in family law that could substantially impact how family law cases involving accusations of adultery are litigated moving forward.

Conclusion

So those are the big changes impacting the topics covered by this blog.  Those are not the only changes in these fields, I'd note, so if you have a question about how any of this year's law changes impact you - ask your attorney!  If you don't have an attorney, then check out our initial consult policy in the link at the top of the page or by clicking here, and feel free to shoot me an e-mail at SLeven@thebaldwinlawfirm.com or give us a call at (703)281-0134.  Our initial consultations are free for up to half an hour!

Relevant Changes in Virginia Law - 2019 Edition

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

Introduction

As I have done every Spring since I began this blog, today I will be giving a summary of new laws
that impact or influence topics covered by this blog - particularly those that may impact posts I have previously made here.

All laws listed here are effective as of July 1, 2019.

Single Filing Uncontested Divorces

Uncontested divorces in Virginia are frequently legally simple, but procedurally complex.  By this I mean the actual law regarding handling of these divorces is simple, but the actual process of getting them done is complex, and frequently requires lawyers to be involved in even the simplest uncontested divorces.  One of the annoyances of handling uncontested divorces is that they require a minimum of two trips to the courthouse.  First, you have to go to file your Complaint for Divorce to open the uncontested divorce.  Then, you can proceed with all your remaining paperwork - a waiver of service of process, affidavits, and the Final Decree itself.  This is all because, as a general rule, someone cannot waive service of process or complete an affidavit in a court case that does not yet exist.  However, HB 1945 has now changed this by adding an exception to this general rule, allowing uncontested divorces to proceed where a waiver of service and affidavits were signed a "reasonable amount of time" prior to the case being opened.  The practical impact of this is that an uncontested divorce will now be able to be completed with a single trip to the courthouse - all paperwork can be prepared in advance and filed at the same time.  This will make uncontested divorces a little less complicated, a little less time consuming, and, hopefully, a little less expensive.

Tenant's Redemption Right Dramatically Expanded

In October of 2014, I wrote a post about a special provision in the law for tenants called a "redemption."  A redemption is almost like a get out of jail free card for a tenant - it allows a tenant, once every twelve months, to avoid being evicted by paying all rent due, late fees, court costs, and attorneys' fees after a five day pay or quit has been served and eviction proceedings have begun.  Pay the right amount on time, and the eviction process is terminated.

Well, as I noted at the time, there's a big catch.  You cannot dispute the amount owed, and you have to pay the redemption at or prior to the first court date (the first return).  HB 1898, however, has changed this.  Now, under the new law, a redemption can be paid up until two days before the eviction itself is carried out (so, after the first return, after the trial, and after the writ of possession has been issued).  This means a tenant can now have his day in court to challenge the amount he or she supposedly owes without losing their right to redeem.  Now, there's another catch.  HB 1898 only applied to Virginia Residential Landlord and Tenant Act (VRLTA) leases.  You may recall from my changes in the law blog post last year, that all differences in the law between the VRLTA and common law/chapter 13 residential leases had been abolished.  Well, HB 1898 (along with one or two more minor law changes) this year applied only to VRLTA leases, and as a result have again created differences between the two.  I honestly believe this was an unintentional oversight by the General Assembly, and will be fixed, but it does emphasize the point that if we really want all residential leases to be treated the same, it's time to just make the VRLTA applicable to all residential leases (or, alternatively, repeal the VRLTA and make chapter 13 applicable to all residential leases).  So, changes along those lines may be coming - stay tuned.

Writ of Eviction Established

Speaking of writs of possession, however, they will actually no longer exist as of July 1st.  SB 1448 changes the name "writ of possession" to "writ of eviction," and provides that such writs must be issued within 180 days of the court order granting possession, and must be executed within 30 days of being issued.

Contract Statute of Limitations Loophole Closed

You may recall from my blog post on statutes of limitations that the statute of limitations in Virginia for a written contract is 5 years, but for an unwritten contract is 3 years.  Not mentioned in that post, but also important to note, is that Virginia law has a catch-all, which says the statute of limitations for any common law lawsuit for which a specific statute of limitations is not set out in the Code is 2 years.  In recent years, defendants discovered a rather devious loophole that a number of courts upheld - namely a contract that was written, but not actually signed.  The fact that the contract was written meant that it could not be an unwritten contract, as specified in statute for the 3 year statute of limitations, but the fact that it was not signed meant it could not qualify for the 5 year statute of limitations for a written contract (as the Code specifically required the writing to be signed by the party being sued for the 5 year statute to apply).  As a result, several defendants sued after two years but before three years, successfully convinced courts that the catch-all 2 year statute of limitations applied, and got their cases dismissed.  HB 2242 now closes this loophole by making written but unsigned contracts specifically subject to the 3 year statute of limitations.

Conclusion

This year's General Assembly session did not produce as many game changers as last year's, but nonetheless provided some very exciting modifications.  I am particularly looking forward to integrating single filing uncontested divorces into my practice.

Relevant Changes in Virginia Law - 2018 Edition

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

[UPDATE:  Some information in this blog post is no longer accurate due to subsequent changes in the law.  Please see my changes in the law blog posts for 2019 and 2020 for more information.]

Introduction

As I have done every April since I began this blog, today I will be giving a summary of new laws that impact or influence topics covered by this blog - particularly those that may impact posts I have previously made here.  This year it turns out had a pretty heavy dose of family law changes that relate to past blog posts - so I will cover those here.  There was also one big change to Landlord/Tenant Law that I also need to cover.  So, with that, here we go.

All laws listed here are effective as of July 1, 2018.

All Residential Leases the Same

Last year, I made a big deal about a law that made the VRLTA apply to almost all residential leases, and that greatly reduced the number of differences between VRLTA and common law/Chapter 13 leases.  Well, this year, the final act has come.  HB 857 passed and signed into law this year eliminates all remaining differences between the VRLTA and common law/Chapter 13 leases, such that all residential leases are now governed under effectively the same terms, whether under the VRLTA or not.  Perhaps most importantly - this includes the VRLTA's provision prohibiting lease provisions that waive any rights under the law.

Retirement a Material Change in Circumstances

Back in 2014, I put together a post about the dangers of retiring if you owe spousal support, and the tendency of courts to consider that a voluntary action such that spousal support will not get modified.  This year, SB 540 is changing that.  Under the new law, the payor of spousal support reaching full retirement age, as described by the federal Social Security Act, is automatically to be considered a material change in circumstances, and instead of outright dismissing motions to modify spousal support due to retirement, the Code now requires the Court to consider a new set of statutory factors when making this decision.  As a result, being an indefinite spousal support payor should no longer mean you never get to retire.

Agreed Spousal Support is Modifiable by Default

In 2016, I did a post listing the five biggest mistakes I see people make in their divorces when not represented by an attorney, and number one on that list was signing a Separation Agreement/Property Settlement Agreement that sets spousal support, but does not say if or how the support is modified.  Under current law, spousal support set by an agreement is only modifiable in the way described in the agreement, and if no way is described, the support can never be modified.  SB 614 will now flip that around.  For all Separation Agreements/Property Settlement Agreements entered into after July 1, 2018, spousal support in said agreement will, by default, be modifiable in the exact same way as if the Court had set that spousal support, unless specific language is included in the agreement making the spousal support non-modifiable (the language required to be used can be found in the new law).  This new law will provide substantial relief for people who try to do their divorce themselves, but don't think about every eventuality the way that a lawyer would.

Background Checks for Step-parent Adoptions

One of my favorite practices that I conduct is adoptions, and amongst my favorites types of adoption cases are step-parent adoptions.  In a step-parent adoption, the spouse of a child's parent decides that he or she is ready to have that child not just be "like" their own child, but actually be their own child, and legally adopts the child.  I did a blog post on step-parent adoptions back in March, 2014.  Unfortunately, however, as with many areas of law, some people use this process to abuse the system.  In recent years, several cases have arisen where convicted sex offenders or other criminals who would not be eligible to adopt a child have gotten around that prohibition by marrying a child's parent and using the permissive and largely passive step-parent adoption process to adopt the child.  Several cases, unfortunately, ended with the step-parent, now legally the child's parent, divorcing the parent, getting court ordered custody or visitation of the child, and abusing the child while in his or her care.  HB 227 will look to solve this problem.  This new law, effective July 1, 2018, authorizes step-parents pursuing a step-parent adoption to receive a formal criminal background check on themselves from the Virginia State Police, and then requires that step-parent to submit the background check to the court for review prior to the granting of a step-parent adoption.  It is sad that the General Assembly felt this step necessary, as this will now prolong and increasingly complicate the step-parent adoption process that had previously been intentionally simple, but unfortunately the lengths to which some abusers go to find victims has made some kind of reform necessary.  That being said, the General Assembly recognized the impact this may have on the process, and so the law is only experimental.  Unless a new law is passed extending it, HB 227 will expire on July 1, 2020.

Mixed Custody Child Support

In 2014, I did a post laying out how child support is calculated, and then I listed a series of complications.  Complication 4 in that post was when children have varying custody arrangements (sole vs. split vs. shared).  At the time, I noted that the Code was silent as to how these child support calculations were to be done, and instead you should try a few different approaches and come to court with the one that comes out best for you while prepared to argue why that's the right approach to take.  HB 1361 has now changed this.  The law now specifically addresses how to deal with cases where kids with shared custody have differing numbers of days with each parent, how to do the calculation when at least one kid is in a sole custody arrangement and at least another is in a shared custody arrangement, and when at least two kids are in a split custody arrangement and at least another is in a shared custody arrangement.  The new calculations are very complicated, but it is now one less area to potentially fight over in court.

Conclusion

While impossible to convey in a single post like this, the family law changes listed herein are, to some degree, game-changers in the field.  I'm very excited to integrate these new laws into my practice.

Relevant Changes in Virginia Law - 2017 Edition

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

Introduction

Now that I've stepped away from this blog in terms of my posting frequency, it will be a continuing challenge to keep it up to date.  As a result, at a minimum, I intend to continue my annual post-General Assembly session blog post of laws that are changing directly relating to this blog.  As I did in 2014, 2015, and 2016, today's blog post will talk about some changes to the law that are happening this year that directly affect topics posted on this blog.

All changes listed in this post take effect July 1, 2017.

VRLTA to Apply to Most Leases

One of the most important distinctions I've discussed on this blog may be on its way out - HB 2033 will be making nearly all residential leases in Virginia subject to the Virginia Residential Landlord and Tenant Act, limiting the applicability of Title 55, Chapter 13 of the Code to rentals from landlords who own two or fewer rental properties and whose leases specifically exempt the rental from the VRLTA.  All other residential leases will now fall under the VRLTA.  Moreover, Title 55, Chapter 13 itself has been heavily amended to include most of the provisions of the VRLTA.  While some important distinctions will remain (Title 55, Chapter 13 still won't have the VRLTA's non-waiver clause, for example), the first question I always ask landlord/tenant clients - which law does your lease fall under - may be on its way out the door.

"Parenting Time"

Over the years, a large number of parents have come to object to the term "visitation."  They feel, I believe reasonably, that it is a term that belittles the non-custodial parent's time with a child to a mere visit, not time as an actual parent.  To that end, HB 1456 will now allow courts, if the judge so chooses, to refer to visitation as "parenting time" in its court orders.  This seems a very small step in the direction of recognizing the important role non-custodial parents still play in their children's lives, but could be an important step nonetheless.

Tenancy in Case of Foreclosure

In the height of the 2008-2009 financial crisis, a problem arose across the country where landlords were having their properties foreclosed on, and tenants were being evicted through no fault of their own (at the time, a foreclosure automatically terminated any lease).  To that end, Congress passed the Protecting Tenants at Foreclosure Act which mandated new notice procedures and protections for tenants in that situation.  However, the Act expired at the end of 2014.  Nonetheless, the Virginia law complying with the Act stayed on the books after the Act's expiration, creating a good bit of confusion.  Now, HB 1623 has resolved this problem by repealing Virginia's statute complying with the Act, but instead of going back to how things had been before, introduces a new concept that a lease on a property that is foreclosed automatically converts into a month-to-month tenancy (meaning either party can terminate, but is required to give at least thirty days' notice to the other, and without notice the rental simply continues on that basis).

Child Support in ABLE Accounts

In 2014, Congress passed the Achieving a Better Life Experience (ABLE) Act, which allows parents or other individuals to set up a savings account that the individual owns, but is tax-deferred when used to pay for a disabled person's "qualifying disability costs" (such as medical expenses, equipment, etc.).  This works much like a 529 plan (in fact, it is Section 529A of the tax code), except for disability expenses instead of college expenses.  Moreover, the money saved in an ABLE account does not generally count towards a disabled person's asset limits on various government benefit programs, so it is a very advantageous account to have.

This year, the General Assembly passed HB 1492, which added a provision to Virginia's child support laws allowing the courts to order, on the request of either party (so the payor can request that this be done just as much as the payee can), to order child support be paid directly into an ABLE Account for the child's benefit.  As a result, parents who have a disabled child can now help ensure that child's future by using child support payments to contribute to an ABLE plan, and they can be confident the other parent won't find a way to mis-use the money.

Conclusion

All in all, the landlord-tenant change was this year's blockbuster in terms of impact on the topics covered by this blog, but these laws and many others are part of what makes the practice of law so fun.  If you have questions about how the new laws affect you, or if you need representation, please review my initial consultation policy, then 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!

Short Topics - Virginia Law on Lease Non-Renewals, Terminating Child Support, and more

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

Introduction

Quite often, I will put up a blog post that breezes over a sub-topic of sorts, noting that the true details of that issue probably warrants a post of its own.  It shouldn't be surprising, though, that often times on the opposite end of the spectrum I get questions or encounter issues that I'd love to discuss on this blog, but are issues that also have relatively short answers and don't really warrant their own blog post.  Over the three and a half years I've been doing this blog so far, those topics have added up, so I'm hoping to finally put together a series of posts addressing a number of those "short topics" - ideas that warrant discussion on my blog, but probably don't warrant their own dedicated post.

Today's blog post will cover settlement issues in a multi-defendant lawsuit, divorces where one spouse's location is unknown, termination of child support, and refusals to renew a lease.

What happens if you're one of several people being sued and the other side offers a settlement, but you're the only one that wants to accept it?

So, we all know that in a lawsuit, multiple people can be sued at the same time for the same thing.  Just because you're all co-defendants in a lawsuit, however, doesn't mean you get along, or are united in your case strategy.  If the plaintiff offers a settlement proposal and your co-defendants don't want to accept it but you do, what can you do?

Well, first understand that if the proposal is presented to all of you, then that specific proposal must be accepted by all of you to be valid.  However, you could take several approaches.  You could personally make a counter-offer to the plaintiff offering to pay your share of their offer in exchange for your personal removal from the case.  Alternatively, you could agree to pay the entire amount of their proposal, and have the whole case dismissed.  The first option is much less expensive for you, but also less likely to be accepted.  The second would almost definitely be accepted, and there would be nothing your co-defendants could do to stop you.

However, without reaching your own personal agreement with the plaintiff, there is nothing you can do to force your co-defendants to accept an offer.

My husband left and I have no idea where he is - how do I get divorced?

Most people are aware that a divorce is a form of legal action and that in order to start a legal action you need to "serve" the other side with papers.  The historic reason for this is that service of process is how the court gains personal jurisdiction over someone - in other words, how the court gains power over a person.  However, there are two types of personal jurisdiction - in personam (power over the person), and in rem (power over a "thing" or "property").

In most legal situations, you need "in personam" jurisdiction, because that's the only jurisdiction that can allow for a court order that in some way attaches to a person - affects all of their rights and properties.  A court cannot impact a person directly without having in personam jurisdiction.  However, there are situations where the real issue is a specific piece of property, but not necessarily a person, that can be brought under the court's control, and so that property is all the court needs jurisdiction over.  Some examples of cases involving in rem jurisdiction would be a case to determine the legal owner of a disputed piece of property or civil asset forfeiture cases (where the government seeks to seize specific property that has allegedly been used in the commission of a crime).

This is all relevant because a person's marital status itself has been determined to be a "thing" subject to in rem jurisdiction - meaning that a court can decide a person's marital status without having personal jurisdiction over both parties to the marriage.  This is important because the rules for service of process for in rem jurisdiction are different.  In Virginia, a court has the power to grant you a divorce even if you don't know where your spouse lives so long as you pursue service by means of an "order of publication" - an order that mails the pleadings to your spouse's last known address and publishes notice of the proceedings in a local newspaper for four weeks in a row (you can sometimes find these legal notices in the classified section of your local paper).  Once you complete an order of publication, the court can grant you a divorce without your spouse's appearance.

Now, to be clear, the court can only grant you a divorce.  It cannot grant you support nor can it divide your marital property (though that can be done via other procedures later, at least for property that is titled in your joint names).

My kid turned 18 and graduated high school - why am I still paying child support?

In Virginia law we have a concept known as "self-executing" and "non-self executing" provisions of support law.  A self-executing provision is one where support changes or is eliminated upon the happening of some event and no further court involvement is needed.  A non-self executing provision calls for changes after a certain event, but you must get a court order first.  The basic distinction is this three part question - is the fact that the event has occurred relatively indisputable and unopen to interpretation, is what the resulting support should be also relatively indisputable and unopen to interpretation, and is support paid directly without the involvement of third parties?  If the answer to all three parts is yes, the provision is probably self-executing, but if the answer to any part is no, then the provision is not self-executing and a new order is needed.

When it comes to terminating child support there is only one (normal - I'm not getting into bizarre exceptions here) situation in which its termination is self-executing: when the child is 18, has graduated from high school, is your only or youngest child with the other parent, and you are paying your support directly to the other parent.  In virtually all other situations, child support termination is not self-executing.  Let's break down the reason why.

Well, to start with, the one example given above is self-executing because your child's age, status, and sibling status should all be relatively indisputable, and if they are your youngest child with the other parent, then support should be $0.  However, if you are not paying directly, that means there's been an Income Deduction Order entered by either the court or DCSE.  Your employer is thus under a court-ordered obligation to pay the support, and cannot stop until he or she has received a new order saying otherwise.  As a result, if all of the above conditions apply except that you are not paying directly, you need to go to the source of the Income Deduction Order (the court or DCSE) and get a termination order entered.  You must also do so ASAP, as money improperly paid under the Income Deduction Order before it is terminated cannot be recouped.

The other changes from the above, simple scenario, are a bit more obvious.  If it's not your youngest child, then you still owe child support, and since the Virginia guidelines are not a "per child" guideline, the new support number is not inherently obvious.  Similarly, if they have just turned 18, or just graduated from high school, but not both, the support termination condition has not been met yet.

My landlord of 20 years has decided not to renew my lease - I've done nothing wrong, how can I fight this?

I get this inquiry a lot and unfortunately, the answer is usually "nothing."  The simple reality is that when you rent, the property you are renting belongs to your landlord and as long as they do so in accordance with the terms of their lease, they can terminate the lease for any reason they want or no reason at all.

Now, the two big defenses to a lease non-renewal are discrimination and retaliation.  Federal law bans housing discrimination on the basis of the "protected classes."  In general, if you have reason to believe your lease is not being renewed due primarily to your race, color, nationality, religion, sex, marital status, status as a veteran (namely discrimination against you for being a veteran), or disability, then you should consult a civil rights or discrimination attorney.  You may not be able to force the landlord to renew your lease, but you should be entitled to fairly substantial damages.

Additionally, in both VRLTA and non-VRLTA leases now, retaliatory conduct is prohibited.  This means if you have evidence that your landlord is refusing to renew your lease because you brought a code compliance complaint against the landlord, filed a tenants' assertion or other lawsuit or otherwise made a complaint to your landlord to fix issues with the property, you organized or became a member of a tenants' organization, or you testified in a court proceeding against your landlord, you can prevent the landlord from terminating your lease or evicting you.

However, absent one of those two issues, your landlord has a right to refuse to renew your lease, no matter how good a tenant you have been.

Conclusion

I do hope to do more of these "short topics" posts in the future.  Each of the situations above are fairly complicated, even for short topics, and as always, I strongly encourage you to retain an attorney to discuss your particular needs.  If you would like to set up a consultation with me, please review my initial consult policy, and then call (703)281-0134 or e-mail me at SLeven@thebaldwinlawfirm.com.  Our initial consults are free for up to half an hour!

Multiple Tenants in Virginia - What to Do when Tenants Don't Get Along

As always, prior to reading this post, please review my disclaimer by clicking on 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 most complicated issues I face as a landlord/tenant attorney is the issue of what to do when two tenants in the same property don't get along.  This matter is complicated whether I'm representing the landlord or one of the tenants, yet it is frequently made even more complicated because neither the landlord nor the tenant did any advance planning for the possibility of a dispute between tenants.  Unfortunately, most of these disputes end up being costly and unpleasant for all involved, and much of the expense could have been saved with proper planning.

In this post, I'll address some of the basics of how to address a tenant dispute when it arises (from either the landlord or tenant's perspective), and then I will discuss a few ways advanced planning can prevent these disputes from escalating.

Know Which Law Applies

I've discussed many times before the difference between leases that are and are not covered by the Virginia Residential Landlord and Tenant Act (for a basic breakdown of figuring out which law applies to you, view my post here).  This is a situation where it does matter whether or not your lease is covered by the VRLTA - especially if you are the landlord.

What a Landlord Should Do if Tenants are Fighting

As the landlord, if two tenants are fighting, it might be your temptation to throw up your hands and say "not my problem, you two work it out."  This would be a mistake.  A landlord is under an obligation to provide a home that is habitable and tenantable, and that includes a home where the tenant is safe and free from improper invasion of privacy, harassment, etc.  If a tenant has a legitimate dispute with their fellow tenant in that their fellow tenant is actually preventing them from having quiet enjoyment of the property, they could be within their rights to terminate their lease early, force you to return their security deposit, and leave you with a smaller rent check each month than you had planned.  Worse yet, if word of your lack of caring gets around, you may have trouble finding a new tenant.  In other words, yes, it is your problem.

The first step you should take as a landlord is to investigate your lease to see if the offending tenant has, in fact, violated any provision of your lease.  If they have, you can proceed with action for a breach of the lease against the tenant, including a 21/30 notice if your lease provides for it or is covered by the VRLTA.  If, however, the offending tenant has not actually violated the lease, you could be in some trouble.  If your lease is covered by the VRLTA, you have the right under Virginia Code Section 55-248.17 to adopt rules and regulations for how your tenants are to behave in the property - the only restrictions are that the rules must be reasonable, and must not amount to a "substantial modification" of the lease in which they entered.  It is very unlikely that reasonable rules about how your tenants behave towards each other will be such a substantial modification, however.  This is important, because once those rules are adopted (and I do recommend consulting an attorney in order to ensure they are prepared and adopted properly), a violation of those rules is legally equivalent to a violation of the lease.

The common law has no identical provision, however, and so if you have a common law lease, you can only adopt such rules and regulations if the lease expressly allows you to (I've said this before, and I'll say it again, the VRLTA leases is a double-edged sword and there absolutely are circumstances where it is more favorable to a landlord than the common law).  If you have a common law lease and the lease does not include a rules and regulations clause, I would strongly advise you to consult with an attorney on how to proceed.

What a Tenant Should Do in a Dispute with Another Tenant

The first thing a tenant experiencing problems with another tenant should do is try to resolve your issues.  If that fails, you should alert the landlord as soon as possible.  This will give you an opportunity to see if your landlord will work with you to resolve the dispute.  If your landlord fails to act, however, then you need to assess whether or not the other tenant is breaching the lease, violating the law, violating properly adopted rules or regulations, or is engaging in conduct that is making the home unlivable for you.  If any of those situations is occurring, you likely have the right to provide a 21/30 notice to the landlord requiring the landlord to fix the situation within 21 days, or terminating your lease in 30 days (a more detailed explanation of 21/30 notices is in my post here).

How to Prevent these Issues

It probably does not surprise you that the vast majority of tenant dispute cases I see, both representing landlords and representing tenants, are cases where a) the lease is not governed by the VRLTA, b) the lease does not have a rules and regulations provision, and c) the offending tenant is not in actual violation of the lease or the law.  Most of those cases, the landlord actually is interested in helping the tenant, but because of the way the law works, the cases end with the landlord agreeing to terminate the offended tenant's lease at no penalty.  The landlord's not happy - they've lost a good tenant and are stuck with a bad one, and the offended tenant's not happy - they've had to move through no fault of their own.  The sad thing is, it doesn't have to be this way.

First and foremost, landlords planning to rent to multiple tenants, and tenants planning to live with other tenants, should ensure that your lease itself contains provisions that not only outline a tenant's duties towards the property, but also a tenant's duties towards other tenant's.  At a minimum, the lease should require tenant's to behave in a respectful manner towards each other, forbid tenants from entering the bedrooms of other tenants unless invited, forbid tenants from harassing or stalking other tenants, and require tenants to share household chores in a reasonable manner.

Additionally, all leases (even VRLTA leases, since it's always better to have in the lease instead of just the law) should have a rules and regulations provision.  The provision should lay out how rules can be made, how they are adopted, how they come into force, and the effect of violating a rule or regulation.  The simple reality is, the best lease drafter in the world cannot foresee every issue that might come up, and it's always a good idea to give you some power to handle issues as they may arise.

Conclusion

Disputes between tenants in a multiple tenancy property are one of the toughest issues we face in landlord/tenant law.  It is made much tougher by the fact that most landlords renting to multiple tenants simply are not prepared for the possibility of such a dispute.  With proper planning, such disputes do not need to be the horror show that they tend to be.  If you are dealing with a tenant dispute, or would like to plan a lease or rules and regulations to deal with tenant disputes, please feel free to call (703)281-0134 or e-mail me at SLeven@thebaldwinlawfirm.com.  We offer free initial consultations for up to half an hour!  Also, our firm just completely revamped our website - you should feel free to check it out here.

Virginia Post-Eviction Issues - Now What?

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

Introduction

So, you've done everything right.  You rented out your home, your tenants stopped paying rent, you did all your correct notices, went to court, got a judgment, and waited out the excruciating eviction process.  Finally, the big day comes, your tenants are out, and you have a house full of their junk.  Now what?

I've been shocked over time to discover that most advice out there about how to handle evictions seems to stop the moment the tenants are removed from the property.  Those who have been through this before, however, know that this is not the case at all.  Just because the tenants are out does not mean the ordeal is over - not by a long shot.  Today's blog post will discuss some of your rights, and your responsibilities, for handling issues that arise once the eviction is over.

Handling Tenants' Personal Property

The first step is handling tenants' personal property.  For this, you have two options (and this is regardless of whether or not you have a VRLTA lease).  First, you can have all of their personal property removed from the house and placed on the street, with the tenants (and anyone else in the neighborhood, realistically speaking) having the opportunity to come and get their belongings from there.  Once the property is out of the house, it is no longer your responsibility, and what happens to it happens.

Now, this option is unappealing for several reasons.  First, you must provide the movers so that this can be done rapidly - and this cost must be borne by you, it cannot be passed on to the tenants.  Second, it can create an eyesore by piling up loads of crap on the street.

So, most landlords opt for the second option.  Bring along a locksmith, change the locks, and then leave the property again, allowing the tenants 24 hours to remove their belongings from the property.  Note, however, that they are only allowed to do this during "reasonable hours" generally accepted to mean 9 a.m. to 5 p.m., so if the eviction happens before 9 a.m., they will actually only have until 5 p.m. that day to act.  Afterwards, they are barred from the property, and can be removed by the police for trespassing.

First Week After Eviction

The first week after the eviction is fairly hectic.  Why?  Because even though you went through all of this, you are STILL obligated to obey your lease terms when it comes to dealing with your tenants' account and security deposit, which usually means a deadline to get a statement out about what damages there are in the property.

If personal property remains after the removal period, you can now dispose of it however you wish.  If, however, you sell it, note that the proceeds of that sale must be applied against the tenants' account.

Next, you'll want to get estimates for getting any work that needs to be done to fix the place up ASAP.  That way, you can put together your itemized list of damages, which is what should be deducted from the security deposit before you apply the deposit to anything else.  Once you have your estimates and have gotten rid of the remaining personal property, it's time to begin work on fixing the place up.

Lingering Tenants

One thing a lot of former tenants don't seem to understand is that post-eviction, all of their rights to the property (and any personal property they left behind) are gone.  As a result, if they keep coming around, you can call the police for trespassing, and even harassment.  I knew one landlord who put all the personal property left behind up for a garage sale only to have the tenants come and start loading up their cars (without paying for any of it).  They were shocked when the police arrived and threatened to arrest them if they did not return everything they had just taken and leave.

I know that, as a human being, this may seem harsh.  You can also be certain that your former tenants will do everything they can to make it seem even harsher - I saw one case where the tenants kept their 5 and 7 year old kids home from school on eviction day just to have them directly beg the landlord not to go through with it.  Remember, though, as harsh as it may seem, by the time an eviction is fully carried out the tenants have literally had months to move out on their own terms and failed to take advantage.  At some point, you have to say enough.  It is now your property, and any doorway you leave open to your former tenants could result in whole new litigation issues arising for you down the line.

Security Deposit

So, once you have your itemized list of damages and costs, you need to send it to your former tenants.  If it subsumes the entire security deposit, and any money you received from selling the tenants' personal property, and then some, you can include a demand for funds (though the likelihood of you ever seeing that money is quite low).  If it does not, then any remaining security deposit and funds received from sale of property should be applied against their outstanding balance from the judgment you obtained.

While I have literally never heard of this happening, I suppose it is theoretically possible that the combination of the security deposit and money received from selling personal property could exceed the total damages and costs, as well as the total judgment against the tenants.  If that occurs, you must record the satisfaction of the judgment with the court where the judgment was entered, and then send the remaining amount of money to the former tenants.

Finishing Up

So, you've got the tenants out, you gave them their 24 hours, you fixed up the place, you handled the security deposit and any proceeds from the sale of personal property properly, now what?  Well, basically, you're done.  Again, the property's yours.  You are free to re-rent to a new tenant and move on with your life - if you are ready to.  However, there may be some lingering issues that you may want to address, but at this stage, addressing those issues is solely up to you.

Post-Eviction Proceedings

So, there are two big issues that are entirely optional to you as a landlord as to whether or not to address after your eviction is complete - post-judgment rent and post-judgment collections.

Many evictions occur before a lease term ends.  As leases are contracts, the principle of "expected value" applies to leases as well.  This means that, for all rent payments that would have been due after the date of judgment, and even after the date of final eviction, you can sue the former tenants for that amount of money.  Note, however, that this only covers rent that would have actually been owed, and that you did not collect.  So, once the lease term would have expired, your potential damages stop.  Similarly, once you find a new tenant and start receiving rent, your potential damages stop.  However, up until the earlier of the end of the lease term or finding a new tenant, you can sue for all rent payments not included in your initial judgment.

Additionally, if you have a judgment left over after the security deposit and personal property is distributed (and almost everyone in this situation does), you may want to pursue collecting that judgment.  If you do, this judgment is treated just like any other, and I wrote a fairly extensive blog post on post-judgment collections in January of 2014.

Most landlords I know, however, recognize that the odds of being able to get a former tenant to pay anything are low, and they will typically just let their judgment and additional rent go rather than incurring the costs of pursuing it.

Conclusion

The eviction process is long, complicated and daunting, and many landlords just want to throw their hands up and celebrate when it's over.  Before you release your attorney, however, it's important to remember that your case doesn't end when your tenants are removed.  If you are having any ongoing issues relating to an eviction, 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!

Relevant Changes in Virginia Law - 2015 Edition

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

Introduction

First of all, my apologies that getting a new post up has taken so long.  The last couple of weeks have been insane work-wise, but hopefully will be calming down soon.

We are finally at the point in the year where all legislative work for the Virginia General Assembly has wrapped up, and we know what new laws will be going on the books this year.  As I did last year, I have reviewed this year's new laws for ones that are relevant to matters I have posted on this blog.  Unlike last year, which saw major changes to the VRLTA and to the child support guidelines, this year's law changes are not substantial changes to blog posts I have made, but they are nonetheless important to know.

As mentioned last year, all laws - unless explicitly stating otherwise - go into effect on July 1st.

Important Change to Defamation Statute of Limitations

In my post on June 5, 2014, I discussed statutes of limitations in Virginia.  Included in that discussion is that the statute of limitations for defamation is 1 year, and the clock begins to run as soon as the defamatory statement is made.

Well, we live in a new era in defamation.  In the olden days, if something defamatory and harmful were said about you, it was usually pretty easy to find out who did it so you could sue.  Not so in the era of the internet where anonymous "trolling" is commonplace.  The General Assembly has finally recognized this, and passed HB1635, which states that if the defamatory statement is made on the internet by an anonymous user or a user with a false identity, you can file an action against them as "John Doe" (anonymous) defendants and the statute of limitations will be tolled until you find their identities or you reasonably should have.

A discerning reader might wonder why this is necessary, since normally the filing of a lawsuit tolls the statute of limitations anyways.  However, in general, the filing of a lawsuit against anonymous defendants does not toll the statute of limitations because the statute applies to each individual defendant, not simply the case, so the actual defendants still have a right, usually, to be sued within the statutory time period.  This new law will create an exception to that.

Retaliatory Conduct Finally Prohibited in Non-VRLTA Leases

I have written again and again about differences between leases governed by the Virginia Residential Landlord and Tenant Act and leases that are not.  There is a difference I never covered, however, because I feared an unscrupulous landlord could read my post covering it and engage in abusive conduct.  Specifically - the VRLTA explicitly banned landlords from "retaliatory conduct" (otherwise legal conduct done by the landlord as retaliation for the tenant doing something he or she is legally entitled to do) while non-VRLTA leases had no such prohibition.  I've handled situations myself where landlords engaged in clearly retaliatory conduct, but as their lease was not governed by the VRLTA, the tenant had no remedy.

This difference has finally been corrected.  HB1905 actually makes it easier to prove retaliation than it had been before, and expands the new retaliation definition to also apply to non-VRLTA leases, and expressly prohibits such conduct by non-VRLTA landlords.

Now it's worth noting that the non-VRLTA rule does not have a non-waiver provision - so theoretically this right can be waived in a non-VRLTA lease, but I have a hard time believing that a lease authorizing a landlord to engage in retaliatory conduct is going to go over too well with potential tenants or with a judge.

Post-Majority Child Support for Disabled Children

Another topic I haven't directly addressed in this blog, but is in the background of many of my posts on child support, is the topic of when child support ends.  In Virginia, the rule has been, since at least the 1970's, that child support ends when the child turns 18, or, if the child is a full-time high school student living with the custodial parent, then it ends at the earlier date of the child graduating from high school or the child turning 19.

There has been for some time, however, an exception to even that.  If the child is permanently disabled, unable to support him or herself, and still living in the home of the parent receiving support, child support could be "continued" for so long as those three conditions (permanently disabled, unable to support self, and living in home of parent receiving support) continued to apply.

Well, litigation ensued regularly over the definition of the word "continued."  Some courts held that support failed to "continue" if the support order ever terminated after the child turned 18, and so no disabled child support could be ordered.  Other courts ruled that no, support "continued" any time there was child support while the child was still a minor - even if the support had been temporarily terminated, and support only failed to "continue" if there had never been child support at all.  Even in those latter cases, however, parents found patently unfair results where formerly married parents got divorced after their disabled child had turned 18 (or 19, depending) and now no support order could be entered.

This year, the General Assembly has sought to undo this confusion and unfairness by passage of HB2383 and SB923, colloquially called "Conner's Law" after a severely disabled child whose father left his mother when he was just over 19 and refused to provide Conner any support.  Conner's Law gets rid of the "continue" requirement altogether, and now the only requirement for a disabled child to be eligible for support (if the child meets the permanently disabled, unable to support self, and living in home of parent receiving support requirements) is that the disability must have appeared before the child turned 18 (or 19, if the conditions for support ending at 19 were met).

Conclusion

As I mentioned, not nearly as dramatic a set of law changes affecting my blog as we had last year - nonetheless, these are important changes to know about.

Virginia Law and the Blog Part III - More Questions About Past Posts

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

[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

Once a fairly regular feature on this blog, it has now been six months since my last FAQ-type post, and in the meantime I've gotten lots of private e-mails with questions about issues raised on this blog.  Many of these questions can be generalized into issues I'd like to talk about, but for the last couple of months I've had a number of topics I very much wanted to cover with posts, so I've let these questions fall to the back burner.  Today, I want to take some time to answer some of these questions (note that all potentially identifying statements and statements nuanced to specific cases have been removed).

"My landlord is refusing to fix my broken heater and I've had so many issues here that I just want out of my lease - am I better off doing a 21/30 notice or a tenant's assertion?"

This is a question I get asked a lot in some form or another.  If your ultimate goal is to simply get out of your lease, both approaches present problems.  This is because, under either approach, your landlord could decide "oh, she's serious, I'm going to fix this problem" and prevent you from terminating.  This is because the "21" portion of the 21/30 notice allows the landlord 21 days from the date of notice to fix the problem.  On the other hand, in a tenant's assertion, it is a complete defense to a tenant's assertion that the condition giving rise to the assertion is now fixed.

On balance, you're probably better off going with the 21/30 notice if lease termination is your goal.  This is because the tenant's assertion gives a landlord a lot more time to fix the issue (remember, to file an assertion, you must provide the landlord written notice of the issue, give the landlord a "reasonable time" thereafter [usually defined as 30 days] to fix the problem, then file an assertion that will usually take 10 days to have a return date and 1-2 weeks thereafter to have a trial) - under a 21/30 notice, the landlord only has 21 days, while with an assertion, the landlord could have as long as two months.  Moreover, the judge in an assertion is not guaranteed to order the termination of the lease.

At the end of the day, the tenant's assertion is very much designed for a tenant who wants to stay on the property, but just wants the issues fixed.  A 21/30 notice, on the other hand, is designed to protect landlords from tenants who are just looking for an excuse to leave, but is much better suited for tenants who are ready to go.

"I fell on hard times and was no longer able to afford my rent.  Of course I received my 5-day pay or quit notice, the eviction process was begun, and a judgment was entered against me.  Shortly thereafter, I got a new job with a substantial signing bonus and was able to pay off the full judgment against me (rent, late fees, attorneys' fees - everything), but then I still got served with a writ of possession to evict me - what can I do?"

Talk to a lawyer, immediately.  Now, the easiest thing to do would be, instead of simply paying your soon-to-be-former landlord, offer to pay them if and only if they agree to release the judgment of possession.  This could be enticing if they don't mind still having you as a tenant, as collecting on judgments is very hard.  If they don't agree, however, you may have a problem.

Here's the thing, once a judgment of possession is entered, you are no longer entitled to be on the property, and any payments you make are just payments of a judgment, nothing more.  However, there is a big exception.

First, you need to figure out whether or not your lease is covered by the VRLTA.  If it is not, and the landlord will not agree to release the judgment, then I'm afraid you are probably out of luck.  You would be better off holding on to the money to help you move.  If your lease is under the VRLTA, however, you can make the payment to the leasing office.  From there, the leasing office will have to make a choice - whether or not to accept your rent with reservation.  If they do, they need to provide you with a letter indicating that the payment does not release you from your eviction.  If they don't do that, or they choose not to do it, Virginia Code Section 55-248.34:1(B) makes the judgment of possession no longer enforceable, and thus any writ of possession invalid.  If you are in that situation, you need to file an emergency motion with the court to have the writ of possession declared invalid.

"In the guest post you had about divorce and immigration, your guest writer mentioned that you can still get divorced here even if you are an immigrant.  What about if you are undocumented?"

The United States has some of the loosest rules in the world for determining who has access to our courts primarily because we think of our courts as a bulwark against corruption and injustice.  As a result, all people, citizens or immigrants, here legally or not, have access to almost all parts of our court system - including divorce.  As a result, yes, you absolutely may file for divorce even if you are here illegally.  That being said, you can expect some obstacles.  First of all, our divorces are required to include the parties' social security numbers in privately submitted documents. If you don't have a social security number, your divorce should still be processed, but the clerks and the judge approving your divorce will almost assuredly know now that you are not here legally.  Second, our trials are public record.  If you are trying to remain low key, going to court is not a great way to do this.

In short, while you absolutely can get divorced here even if you are in the country illegally, I strongly recommend consulting with an immigration attorney before doing so in order to discuss the risks that filing for divorce may entail.

"You've mentioned before that adultery is still relevant to divorce law in Virginia and that one of the reasons is that adultery can be used to bar someone from receiving spousal support.  Does this include a sexual encounter that occurs while you and your spouse are already separated and in the process of a divorce?"

Adultery, by definition in Virginia, is an instance of sexual intercourse with a person other than your spouse while you are still married.  Note that the definition does not say "married and living together" or "married and getting along" (and also note that we are talking about the legal definition of adultery here - different religions define it differently, but Virginia law doesn't care what your religion says is or is not adultery).  If you are separated and going through a divorce, but your divorce is not final, when you have sex with someone else, as far as Virginia law is concerned you have committed adultery.  This means that, absent a showing of manifest injustice, if proven you will now be barred from receiving spousal support.

Look, I always tell my divorce clients that it's best to wait until your divorce is final to even start dating.  But, at the same time, I recognize that we are all human, and that human beings have both emotional and physical needs, especially while going through one of the most difficult times of your life.  I can even think of a couple clients I have had who actually met the love of their life while going through their divorce, started dating, and are now very happily married.  So, while I always recommend against dating while separated, I recognize that this can be an unrealistic expectation for many clients - especially given how long it takes to finalize a divorce.

That being said, a "relationship" does not have to equal "sex."  As long as you waited to start dating someone until after you separated, the mere fact that you are dating someone should not be counted against you in your divorce - but if you have kids, be aware that the nature of your relationship and the quality of the person you are dating could become an issue in any custody case.  It is only when that relationship rises to sex in all of its various forms (note that the code section at issue does not merely apply to "adultery" but also "sodomy" and "buggery"), however, that it becomes a problem in the support context.  If you can keep your pants on until you're divorced, you should be ok.

Conclusion

As I said at the beginning, I have a bunch of these questions since it's been so long since I last did one of these, but I also do want to keep this post of a reasonable length, so I will stop at four for today.  You can expect a couple more of these in the next month or two.  If you need further assistance regarding any issue raised today, you should 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!

Virginia Commercial Landlord/Tenant Law - An Introduction

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

Introduction

It's no secret that I talk about landlord/tenant law on this blog a lot.  Despite landlord/tenant work being only about 30% of my practice (Family Law is about 50%, and a combination of other practice areas make up the other 20%), most of the time where I am faced with a problem caused by someone acting outside the law, it's a landlord/tenant case.  For this reason, I have not only focused on landlord/tenant law, but specifically residential landlord/tenant law - the law covering landlord/tenant relationships where the tenant lives in the leased property.  But there is a whole other field of landlord/tenant law that I work in which is also important for many people, especially small business owners, to understand - commercial landlord/tenant law.

Commercial landlord/tenant law is the law covering landlord/tenant relationships where the tenant is primarily renting the property in order to run a business out of the property.  Most businesses, especially small businesses, do not own the building or store that they operate out of, rather most rent, and commercial landlord/tenant law governs their transactions.  Commercial landlord/tenant law is, in many ways, radically different than residential landlord/tenant law, so I cannot hope to cover it all in one blog post.  Instead, today I hope to give you a brief introduction to commercial landlord/tenant law.

VRLTA vs. Title 55, Chapter 13 vs. Something else?

I have talked over and over again about how important it is to know what law governs your lease - the Virginia Residential Landlord and Tenant Act ("VRLTA") or Title 55, Chapter 13 of the Code of Virginia.  Well, for commercial leases, the answer is "neither."  Virginia Code Section 55-248.5(A)(7) explicitly excludes commercial leases from coverage under the VRLTA.  Meanwhile, while there are parts of Title 55, Chapter 13 that impose some restrictions on commercial landlord/tenant relationships, pretty much all of the important ones (5 day pay or quit notices, 21/30 notice rights, rights against self-help, etc.) are explicitly limited to residential leases.

As a result, commercial leases are almost exclusively governed by common law principles and contract law.  With rare exception, what it says in a lease goes, especially since even those Code provisions that do cover commercial leases do not have non-waiver clauses.

"Default Rules"

So, let's talk for a minute about the default rules for the common law.  In this example, you have a commercial lease that just says "Landlord leases property to tenant for tenant's business at a rate of $x per month for 12 months."  I've never seen a commercial lease like that, but it's a good starting point, because if you have a lease like that, the "default rules" apply.  The default rules are what the common law says should happen, but can be changed by provisions of the lease itself.  Here are what I consider the most important "default rules" in commercial leases:

• If the tenant breaches the lease in any way (non-payment of rent or otherwise), the landlord has the right to immediately terminate the lease without advanced notice or giving the tenant an opportunity to fix the breach.
• A landlord may self-help - he may come in, change the locks, remove all of the tenant's property, and retake possession of the property, all without going to court.
• If the landlord breaches the lease, the tenant may file a suit for rescission to have the lease terminated.  There is no such thing as a Tenant's Assertion for commercial leases.
• The tenant may not self-help by refusing to pay rent.  The tenant may self-help by fixing the problem himself and then demanding reimbursement from the landlord.
• If the landlord sues for non-payment of rent, the tenant may raise as a defense "constructive eviction," meaning flaws with the property were so serious the tenant could not continue to use the property.  Constructive eviction can negate any unpaid rent due, but it does not give the tenant a right to return to the property.
• If the landlord sues for non-payment of rent, the tenant may raise as a defense "recoupment," meaning the flaws with the property were so serious that they diminished the value of the property to the tenant and so the tenant should not have had to pay rent in full.  Recoupment can negate some or all unpaid rent, but it does not give the tenant a right to return to the property.
• Even though a landlord has the right to self-help, the landlord may still file an Unlawful Detainer in the General District Court and get a court order for possession enforced by the sheriff.  Doing this protects the landlord from potential liability for an unlawful eviction (if it later turns out the tenant was not in breach and the landlord self-helped, the landlord can get in a whole heap of trouble), and also protects the landlord from potential liability for any damage done to the tenant's personal property in the course of the eviction.
• Unlawful detainers for commercial leases are exempt from the General District Court's jurisdictional maximum of $25,000 (so, an unlawful detainer in a residential lease where more than $25,000 is owed must be filed with the Circuit Court, but a commercial lease can be filed in the General District Court no matter how much is due).

Now, you will notice that a lot of that is dramatically different from residential landlord/tenant law.  Notices are mandatory in residential law, self-help of all forms, both by landlords and tenants, is banned, and "constructive eviction" and "recoupment," while technically still available, have both been overcome by the availability of much more effective offensive - rather than defensive - tools (21/30 notices, tenant's assertions, etc.).  Similarly, rescission would also still be available but is rendered completely moot in residential law by the availability of 21/30 notices.

Typical Changes

Because the common law is so weak (I mean this in the sense that it can almost entirely be waived by contract), most commercial leases are actually very long, as businesses typically have their own way they want leases to be governed.  Moreover, the power balance between landlords and tenants is much less tilted towards landlords in commercial law than residential law, so tenants are much more likely to actively negotiate their leases.

The result of this is that many of the above common law defaults do not actually apply to commercial leases.  Most leases I have dealt with, for example, have notice provisions.  This actually makes sense even from a landlord's perspective, because an eviction is typically much more expensive than just having your tenant correct the problem.  Additionally, while few outright ban self-help, many provide incentives for not using self-help (for example, attorney's fees only being available if you go to court instead of self-helping).

The end result is that if you are analyzing a commercial landlord/tenant situation, you need to not only understand the law, but also deeply understand the lease.  In residential leases, you can ignore whole provisions since you know the law governs and cannot be waived in some instances.  You do not get that luxury with commercial leases.

Conclusion

As you can see from the above, commercial leases are really a whole separate area of landlord/tenant law than residential leases.  Very few statutes apply to them, almost everything is waivable, and there are complex common law rules that date back centuries that apply.  If you are considering drafting or signing a commercial lease, or are involved in a commercial landlord/tenant dispute and would like legal assistance, 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!

Classic Law is Your Friend: Virginia Tenant's Assertion

First of all, I realized today that I forgot to post last week.  I must send my sincerest apologies.  Last week, I had to spend all day Tuesday in a class in Washington, DC (I've just been admitted to the Bar there and am trying to get up to speed so that I can take cases there in the near future), then I was in court most of the day Thursday and Friday, so again, I am sorry about the oversight.

Today's classic blog post discusses tenant's assertions - one of the options available to tenants with abusive landlords who violate their lease and the law.  It was originally posted on November 13, 2013 and was titled "Avoiding Tenant 'Self-Help' Part 1 - Tenant's Assertions."

Where I felt it necessary, 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 my post, please review my disclaimer by clicking on the link above, or by following this link.  As always, any principles discussed apply only to the Commonwealth of Virginia.

Introduction

Most of my regular readers will remember my post from several months ago talking about how it is improper when in a landlord/tenant dispute to engage in self-help.  Self-help, again, is what happens when, without a signed agreement with the other party, and without court approval, you take action altering the terms of your lease (a non-exhaustive list of examples as a tenant is withholding rent or fixing damage yourself, while for landlords can be changing the locks, cutting off power, etc.).  If you engage in self-help, even if you are legally in the right, the consequences can be very severe - heavy imposition of damages, injunctions, attorneys' fee awards, etc.  [Not to mention eviction if you are a tenant.]  As a result, it is important you avoid self-help.

Since posting my "don't do self-help" post in July [of 2013], however, I've gotten numerous questions about what the alternatives are.  Since the alternative is generally clear for landlords (legal eviction proceedings), nearly all the questions I get, and nearly all the examples of improper self-help I see, involve tenants.  While I do present these alternatives in my July post about self-help, my presentation is short, and probably not very helpful.  As a result, starting this week, I've decided to start a multi-part series discussing each of the options available to a tenant whose landlord is in active violation of the lease.  Today's post will discuss a legal proceeding known as a "Tenant's Assertion."

VRLTA vs. Common Law/Chapter 13 Lease

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

What Is A Tenant's Assertion?

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

Pre-Conditions to a Tenant's Assertion

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

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

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

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

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

While Assertion is Pending

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

Trial

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

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

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

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

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

After Trial

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

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

Conclusion

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