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

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

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

Introduction

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

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

VRLTA vs. Common Law/Chapter 13 Lease

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

What Is A Tenant's Assertion?

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

Pre-Conditions to a Tenant's Assertion

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

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

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

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

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

While Assertion is Pending

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

Trial

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

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

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

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

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

After Trial

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

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

Conclusion

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

Common Sense vs. The Law - When Doing What Makes Sense IS the Right Choice

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 involved in this post apply only to the Commonwealth of Virginia.

Introduction

Most people who have learned anything about the law know that the law's relationship to common sense is tenuous at best.  Most lawyers will regularly advise people that "well, I know that makes sense, but that's not what the law says."  Usually that's good advice, but not always, and I hope in this post to explain when listening to your common sense is a good idea.

The Self-Help Example

As is frequently the case, my inspiration for writing this post comes from experience with an actual case.  As is unusual, however, I think talking about that case in some level of detail is warranted to explain the point.  As a result, please remember that every case is unique, and relies on its own sets of facts.  Do not conclude that just because something happened in one case it will happen in yours, rather your own case is unique and will require its own unique considerations.

Recently, I represented a client who was a tenant to out of state landlords.  Many months earlier, the basement of the house my client was renting was flooded and rendered unusable.  Under both my client's lease and the law, she should have been entitled to abate some of her rent while repair was pending, but she took no action, relying instead on the landlord to do the right thing and just repair the basement quickly.  After several months of practically no repairs, however, she finally got fed up and withheld part of her rent from one of her rent payments.  Those of you who have read my blog before already know that this is self-help, and that in a residential lease self-help is a big no-no.  The landlords were outraged, hired an attorney, and my client received a pay or quit notice.  That's when she came to me.

We agreed to pay back the withheld rent, along with late fees and the reasonable attorneys' fees the landlords had paid to get the pay or quit drafted and served.  The next week, I filed a tenant's assertion on my client's behalf, seeking fairly extensive relief.  After two months of rent going entirely into escrow, we finally had our trial.  At trial, the judge agreed that my client should have an abatement of her rent.  However, the judge's commentary didn't end there.  He then expressed his outrage that the lawyers for the landlord had advised their client to submit a pay or quit, and called that conduct "reprehensible."  Even acknowledging the landlords were right under the law, the judge expressed concern at their morally outrageous behavior.  In the end, my client was reimbursed partial rent (a higher "portion" even than she had withheld the one month she did withhold) dating all the way back to the date the basement was flooded, and my client was even reimbursed the late fees and attorneys' fees she'd paid on the pay or quit.

The reason this relates to my blog post is this - if the landlords had ignored the law and just listened to their common sense, done what is right, all they'd have lost out on is a little bit of rent for a few months until the basement was finished.  Instead, they looked bad to a judge and lost out on a heck of a lot more rent.  In the end, not doing the "common sense" thing probably cost the landlords around $4,500 or more (not including the legal fees they spent defending my Tenant's Assertion).  That's a lot of money to pay just to prove a legal point.

So, How Do You Tell the Difference?

So, it's simple to look at an example like that and say "ok, sure the landlords were jerks and shouldn't have been, but how do you know when to listen to common sense instead of the law?"  Well, the rule I suggest following is that if you are legally barred from doing what common sense tells you to do, follow the law.  If you are legally required to do what common sense says you shouldn't do, follow the law.  However, if you only have the legal right to do or not do something common sense says you should not do or do, respectively, but there's no legal requirement, then listen to common sense.

Using my example above, my client was legally barred from doing what common sense told her to do (withhold rent), so she should have listened to the law, and ultimately she did.  The landlords, however, only had a legal right to send a pay or quit.  They weren't required to.  They could have just accepted her withheld rent and said "yeah, we should have repaired the basement faster, sorry, this is an ok amount to pay us until the basement's finished."  That's where the difference comes in.

Now again, you might wonder "ok, so where's the limit?  Surely in your example, the landlords should have filed a pay or quit if your client had withheld all of her rent, since the basement is nowhere near all of the rented house."  Well, that's the thing.  Common sense is flexible while the law, generally, isn't.  If the amount my client had withheld had been unreasonable (obviously I believe it was not, nor did the judge in this case) then common sense would say to the landlords to exercise their legal rights.  Common sense and the law don't always conflict.

Nonetheless, while every situation is unique and I'd encourage you to consult a lawyer when making your own decision for your case, I believe the rules I've outlined above generally hold.  When you are legally barred from doing or required to do something your common sense says you should or shouldn't do, respectively, listen to the law.  When the law only permits you to do or not do something your common sense says you shouldn't or should do, respectively, then listen to your common sense.

More Examples

Well, the above is a bit abstract, so I want to use some more examples.  Unlike my opening example, however, these examples are not taken from real cases.  Like my opening example, however, each case is unique, so do not assume that something I outline here applies to your case without consulting with an attorney first.  As I said, however, the following examples are simplified, and made up.

John and Suzie are married and having marital troubles.  They have no children.  They decide to get a divorce.  John demands that Suzie gets out of the house, and while she's out one day, John changes the locks.  Suzie remembers that a spouse cannot just kick another spouse out.  Suzie's sister, however, owns an estate with a luxurious guest house and has regularly told Suzie she can move into the guesthouse for free if she ever needs to.  In that case, despite Suzie having the right to stay in the marital home, I would suggest she move out and move into her sister's guest house (after having John sign some papers making clear that he recognizes Suzie is not abandoning the marriage).  This would get her out of a probably unpleasant home situation without too horribly interrupting her life.  If John were my client, however, I'd tell him to return the locks, since he is legally barred from forcing Suzie out at this point.

Bill rents a condo from Jason.  Bill cannot afford the rent anymore, so he stops paying it.  He finds a new place that he can afford and moves there.  In the meantime, without serving any notices or filing an unlawful detainer, Jason changes the locks and bars Bill from the property.  Bill wants to sue for unlawful eviction.  If Bill's my client, I would advise him to let it go.  He hasn't paid rent, he's already moved out, all he's doing by suing is getting Jason to get his papers in order to file an unlawful detainer that will likely cost Bill more.  If Jason's my client, however, I would advise him to immediately change the locks back and let Bill in whenever he wants, since what Jason did was illegal.  I'd, of course, also advise him to get his notices in order and file an unlawful detainer.

So those are a couple more examples I hope will help explain what I mean.  I suppose the simplest saying to use is that just because you can do something doesn't mean you should (and the reverse, when you must do something, then you should).

Conclusion

Sometimes people get so caught up in the law and their rights that they forget that common sense still has a role to play in their decisions.  Much like just because the first amendment says you can say something doesn't mean you should, so too with exercising your other legal rights.  In some cases, ignoring your common sense can cost you dearly.  If you're in a situation where you think your common sense and the law may be in conflict, I'd advise you to consult with an attorney before deciding what action to take.  If you want that attorney to be me, please call (703)281-0134 or e-mail sleven@thebaldwinlawfirm.com to set up an initial consultation.  Our initial consultations are free for up to half an hour.

Legal FAQ Part III

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 in this post apply only to the Commonwealth of Virginia.

Introduction

In the past, I've done FAQ's when I've had writer's block or when I wanted to introduce a new concept to the blog.  Today, I'm doing it because I have had several ideas for posts to put together, and realized that all of them are too short to really warrant their own full blog post - so they worked better as FAQ's.  As always, the format will be simple - I'll pose a question in bold, usually one I am asked a lot, and then I will attempt to answer it in the paragraph that follows.  At the end, I'll ask you to submit any questions you may have for future FAQ's.

If I'm involved in a lawsuit but have a lawyer, when do I actually need to take off work and come to court?

Note:  This question was sent to me by a reader in response to my ask the lawyer blog post.

This is actually a very common question I get asked when representing clients.  The answer is two-fold.  First and foremost, you need to be in court any time there's a hearing in which your testimony will be needed.  This means if the hearing is about a factual issue (as opposed to the facts not being in dispute, but there being a legal issue) there's a good chance you need to be there.  Second, if there's a hearing where you not being there might look to the judge like you don't care about the case, you should be there.  For both of these reasons, however, your lawyer is likely to know what's needed and should be able to advise you.  In my experience, hearings other than the trial in which testimony is taken are rare.  Pendente Lite hearings in family law cases, hearings on a Plea in Bar, and hearings on matters that will take more than 30 minutes to be heard tend to be the only ones I can think of - but again, for your case, your lawyer will know.  For the second, this is pretty much only at trial.  In a civil lawsuit, if you have a lawyer, there is no requirement that you actually attend your trial (unless you have been served with a subpoena).  Nonetheless, even if you don't plan to testify, failure to be there will usually look bad to a judge unless you have a good reason.

While every case is different so I cannot speak to the facts of your particular case, in most non-family law cases I have handled, I've needed my client to come to court exactly once (the date of trial).  Even in family law cases, it's typically been only twice (trial and a Pendente Lite hearing).

My tenant has stopped paying rent and skipped town - how long will it take before I get my property back to re-let?

So, again, every case is different, and even worse - the answer is probably different from county to county, so I'm mostly speaking from experience in Fairfax County here.  Even though your tenant has disappeared, you still need to serve them with a 5 day pay or quit notice.  The sheriff or a private process server will need to post it on the front door of the residence.  You must wait 5 days from that point before you can file your Unlawful Detainer (assuming no payment is made).  If after five days you file an unlawful detainer, the return date will usually be set 16-21 days from then.  If, at the return day, nobody shows up for the other side, you can ask for a default judgment, and, unlike many other situations where there is a 10 day waiting period, you can ask that a "writ of possession" be immediately issued.  Upon the issuance of a writ of possession, the sheriff's office will receive documents needed to execute the writ.  After usually about two weeks, you will get a call from the sheriff's office to find out your availability to be at the property.  Once you agree on a date, which must be at least four days in the future, you and a sheriff's deputy will go to the property and you will be restored to possession of it.  In short, if there is no opposition from the tenant at all, you can reasonably expect to have possession back somewhere between 40-45 days after the process begins - but it's certainly not a guarantee.

As of December 31st, my wife and I were separated.  I really don't want to have to work with her to file a joint tax return.  Can I file separately without taking the tax penalty for doing so?

Note: This question was sent to me by a reader in response to my ask the lawyer blog post.

I am not a tax attorney, but this is an issue we have to address regularly nonetheless.  My first comment would be to suggest that you try to work through your issues and file a joint return.  You are likely to each pay less tax if you do this.  If you absolutely cannot stand it, however, my understanding of the tax code is that you can file as a single taxpayer if you are legally separated.  This would avoid the penalties associated with filing in a "married, filing separately" return.  In Virginia, however, we don't have a "legal separation" concept.  Your separation becomes "legal" as soon as one person leaves and one of you decides that the separation should be permanent.  Tax law, as a surprisingly large number of federal laws do, defers to state law when determining if you are legally separated.  Since, as discussed above, Virginia considers you separated the moment one of you leaves and one of you decides that the separation should be permanent, that's been generally accepted to be all you need in Virginia to allow you to file a "single" federal tax return.

While my divorce case was pending, I lost my job and can no longer afford the mortgage on the marital residence.  I found a buyer willing to pay a good price and give us a decent bit of equity, but my husband won't sign the sales papers and wants to wait to hear how the court will divide the house at trial.  The house will be foreclosed on before trial, though, since we can't afford the mortgage!  What can I do?

This is a bit of a sticky issue.  Your husband may be right that it's a good idea to get the court's decision on how to divide the house before selling, but sometimes the reality on the ground just doesn't allow for that.  He's either being unreasonable, or it's always possible that in anger he's sabotaging your assets.  He may very well have decided that he's willing to give up his share of the house just to watch you not get yours.

Fortunately, there is a solution.  Virginia Code Section 20-103, the section that allows you to file for pendente lite relief, allows a court to make a pendente lite order "to preserve the estate of either spouse, so that it be forthcoming to meet any decree which may be made in the suit."  There is no restriction given on what courts can do to preserve the estate of either spouse, either.  So, if you can convince a court that there will be a substantial loss to both of your estates if the home goes into foreclosure, the court may well order your husband to sign off on the sale.  If he still refuses, the court can appoint a "commissioner" to sign on your husband's behalf, and by law the signature is just as valid as if your husband had signed himself.

Conclusion

And that's it for today's FAQ's.  As always, feel free to e-mail me at sleven@thebaldwinlawfirm.com if you have questions you'd like answered on a future blog post or FAQ.  In addition to eventually posting the question and answer if I think it's a good one, I'll usually also immediately respond to your e-mail with a short answer.

It's Not Me, It's You - When Losing Isn't Your Attorney's Fault

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

It's amazing to me how many times I hear from people who have just lost in court coming to me looking to hire a new attorney because they are convinced the reason they lost is their old attorney.  As I delve into my consultation, however, facts begin to come out in the discussion that make one thing clear - the loss had nothing to do with the quality of the prior attorney.  Sometimes my response is "It sounds to me like the judge just got it wrong, so let me help you try to fix it."  Sometimes potential clients are shocked (and proceed not to retain me) when I respond "I hate to say it, but I think the judge made the right decision, and I don't think having another attorney would have helped."  I can count on one hand the number of times I have actually agreed that the prior attorney did a bad job.

There's an old saying in law that the quality of your attorney makes the difference between "winning" and "losing" a case (I use quotes because winning and losing in the legal context is not always clear-cut) in somewhere around 5% of cases.  I tend to agree with that statistic if you add the caveat that having an attorney at all versus not having one makes the difference in somewhere closer to 20% of cases (note that this is still a minority).  So, why do I still say having an attorney, and not just any attorney but a good attorney, is so important?  For that, you will need to read on.

Was Your Loss Really Your Attorney's Fault?

When you are living your case, it is often hard to consider the possibility that you are wrong.  Maybe you are morally right, but legally wrong.  If you got your leg crushed by a fallen piano and had to have it amputated because it took too long to get the piano off your leg, you can't sue the people who just stood around laughing at you instead of helping.  No matter how wrong what they did was morally speaking, there is no legal duty to help you - as long as they didn't cause the piano to fall in the first place, they're not liable, and no attorney is going to change that.

Now, usually things aren't as obvious, but at least over time, you should be able to get a hint.  Remembering that all cases are different so the facts of any given case may not apply to yours, I am aware of a child custody case in which the non-custodial parent has filed suit to take custody away at least four times in the past five years.  He has lost every time, and every time a new suit is filed within a couple months with a new attorney.  At some point, he might want to start asking if it's really his attorneys, or if it's him, that's losing his case.

Ultimately, the thing to remember is exactly what I say in the introduction.  The quality of the attorney makes a difference in trial results about 5% of the time.  That means that if you lost, there's a 95% chance that a better attorney wouldn't have done any better for you.

Why Having a Good Attorney Still Matters

So if it's so rare for the quality of an attorney to affect the outcome of a trial, why do you still need a good one?  Or why do you need one at all?

Well, let's say you get sued for $50,000, and I told you that with attorney A you'll come away paying $45,000 while with attorney B you'll come away paying $100,000.  Wouldn't you choose attorney A?

You see, in the scenario I outline above, attorney A is the better attorney.  This is the one to whom you come to your consultation, you explain why you don't think you're liable, he reviews your case, tells you why you are liable, then helps you settle for $40,000, racking up only $5,000 in legal fees in the meantime.  Attorney B tells you what you want to hear, tries to find a way to defend your suit, racks up $50,000 in legal fees preparing for trial, and loses.

My point is that the most valuable tool a good attorney brings to the table is knowing when your case is weak.  A good attorney will know that you have a losing case, will explain to you why you have a losing case, and instead of wasting billable hours preparing for a worthless trial, will help you settle the case as quickly as possible so you can move on with your life.

Understand that in my scenario here, both attorneys would lose if the case went to trial.  The difference is, the better one will help you avoid trial to begin with.

How to Maximize Your Attorney's Effectiveness

So, with that covered, the next question might be what you can do to help your attorney represent you to the best of his ability.  The simple answer to this is listen.  Your case is yours, and all decisions are ultimately yours, but if your attorney tells you that you have a losing case, you may want to consider that your attorney may be right.  Certainly you should feel free to get a second opinion, or if you've heard from friends, colleagues or other attorneys about ways that you have a good case, mention those ways.  I know I have had clients bring up to me arguments they thought were winning only to have me explain why these did not apply to their case.  This left the client much more satisfied than sitting there just wondering why I wasn't looking at going this other route.

The second way to maximize your attorney's effective is to ask.  I am at my best when my clients have almost as good an understanding of the law and legal issues of their case as I do.  Since an attorney will never know the facts as well as the client does, and the client will never know the law as well as the attorney does, each person asking the other questions whenever they come up helps maximize knowledge.  If you, as a client, know the law almost as well as I do, you might suddenly realize that a fact you never thought was important before actually is important, then you'll mention it to me, and now my ability to represent you has been improved.  I've never known an attorney unwilling to answer client's questions about the law and the way it works in their case - any time you have a question, just ask.

Conclusion

Losing is hard for anyone, but when you believed yourself to be right, it is even harder.  Often the easiest target for blame for a loss in court is the quality of your attorney, but you need to remember that this is rarely the actual cause of a loss.  A good attorney is not necessarily one who will make the difference between winning and losing in court, but between maximizing your gains or minimizing your losses outside of court.  The most valuable things you, as a client, can do to ensure that your attorney is as effective as possible is to listen to what your attorney has to say about your case, and to ask your attorney whatever questions you may have.  If you have a case that you have lost but would like to appeal or take another crack at, or if you'd like a second opinion on something another attorney has told you, please feel free to e-mail sleven@thebaldwinlawfirm.com or call (703)281-0134 to set up an initial consultation with me.  Our initial consultations are free for up to half an hour!

No Blog Post This Week - But Stay Tuned!

Those of you who are regular readers of this blog know that I try very hard to make a post at least once a week.  Since starting this blog, I have succeeded at that goal.  Unfortunately, this week will be the first week I miss.

At present, I have a trial scheduled for tomorrow, a mini-trial in another case scheduled for Thursday, and a hearing in yet another case on Friday, followed by a family photo session with my wife and son Friday afternoon.  As a result, my choices this week have been to rush through a short blog post, or to not do a post at all.  As I thought about it, I decided that a rushed blog post would not be up to the quality that I like to keep my blog posts to, and as a result, I would be doing a disservice by doing that.  So, I am not going to post this week.

Nonetheless, unlike my post in August, I am not hitting writer's block.  I have plenty I'd love to talk about right now, and have several extensive posts planned - so please stay tuned, and you'll hear back from me next week!

Dead-beat Diplomats - Evictions, diplomatic immunity and the law

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

Introduction

Working so close to Washington, DC, it's only inevitable that my work occasionally brings me into a situation in which I must deal with diplomats.  This inevitably means dealing with issues related to Diplomatic Immunity.  Now, most people understand that Diplomatic Immunity prevents a country from arresting the diplomats of another country.  What many people do not understand is that Diplomatic Immunity also has effects in the context of civil law.

The reason most people do not understand this is that Article 31 of the Vienna Convention on Diplomatic Relations provides an exception to immunity from civil jurisdiction for actions "relating to any professional or commercial activity exercised by the diplomatic agent... outside his official functions."  This means most things you would sue a diplomat over (not paying a bill, for example) would likely fit into that exception.  However, there are many things that don't (if a diplomat hits you with his car while he's driving to work, you'll have to sue him in his home country).  Perhaps the biggest place, however, where a diplomat can use his immunity to interfere with civil actions is in landlord-tenant law.  Simply put, a diplomat cannot be evicted.

Inviolability

Now, you might say, "Hey, renting a property is outside a diplomat's 'official functions' so why can't I evict a diplomat?"  The answer is that there are two types of diplomatic immunity - one that protects a diplomat from being brought to court (the type we most often think of), and one that protects a diplomat from being harassed by local authorities (called "inviolability").

As discussed above, the relevant law here is the Vienna Convention on Diplomatic Relations, a treaty entered into in 1961 and ratified by most of the world, including the United States.  As a federally-ratified treaty, the Convention pre-empts any state law to the contrary.  Article 22 of the Convention requires that the premises of a diplomatic mission be inviolable, meaning that "the agents of the receiving state may not enter them, except with the consent of the head of the mission."  This means, for example, if there's a hostage situation in the Swedish Embassy, an American SWAT team cannot go in without first getting permission from the Swedish Ambassador.

Now, that may seem simple enough to understand, but the relevance of this to landlord-tenant law is a little bit more complex.  In the 1980's and 1990's, the mission to the UN of the nation of Zaire became severely delinquent in its rent for its office space in New York.  The landlord sought to evict Zaire.  The Second Circuit, in a ruling that has been widely accepted across the country since it was made, ruled that since enforcing the eviction would require the local police to enter the premises of the mission, this would violate Article 22 of the Convention, and as such an eviction could not be ordered.

Now, this might all make sense to you - that one cannot take action like this against the official mission - but why should this apply to a diplomat's private home?  Because Article 30 of the Convention requires that "the private residence of a diplomatic agent shall enjoy the same inviolability and protection as the premises of the mission."  In other words, you cannot do to the home of a diplomat what you cannot do to the diplomatic mission.  If you cannot forcibly evict a mission, then you cannot forcibly evict a diplomat.

Reasons to Rent to a Diplomat Anyways

Now, you might look at this and say "holy crap, if the diplomat violates his lease, I'm screwed, I should never rent to a diplomat!"  I can understand the reaction.  The inviolability of a diplomat means you cannot evict the diplomat if he is not paying rent, committing a crime on the property, or even just staying past the end of the lease term and refusing to leave.  Nonetheless, saying you should never rent to a diplomat may be a little extreme.  There's a reason this isn't a well-known issue - it doesn't come up much.

Diplomats are representatives of their countries.  They are usually chosen from amongst their countries' respected citizenry, and they usually consider it to be part of their job to leave a good impression with all they encounter in their host country.  The fact is, the simple moral obligation to obey their lease will be enough for most diplomats.

Moreover, many diplomats do not pay for their own housing, and you would in fact be contracting with their mission - and by agency, their home country.  Most countries are pretty reliable to pay their bills - they have the money, and they are concerned with maintaining positive diplomatic relations.

Finally, even if your diplomatic tenant does become behind on rent, you can still sue and collect on your judgment via garnishment (possibly not of wages, but bank accounts, for example, remain available).  You just can't evict.

Ways to Protect Yourself

So, if after reading the above you conclude that, ok, maybe it is ok to rent to a diplomat after all, you might be wondering how best to protect yourself.  I'll start off by giving you one thing you cannot do.  You cannot require the diplomat to waive his immunity as part of your lease.  Well, that's not completely true, you can, but it would be meaningless.  This is because diplomatic immunity is not a right a diplomat can waive.  Diplomatic immunity belongs to the country and only the country can waive a diplomat's immunity.  And no, asking a mission to sign off on a waiver for a lease is just not going to happen, so it's probably best not to try.

The first thing I would recommend doing as a landlord is finding out - if your diplomat is paying for his own housing - if his mission would be willing to co-sign the lease.  As I said, missions are going to be fairly reliable payers, so having a mission as a back-up is always a good plan.

Regardless of whether or not the mission will co-sign the lease, the recognition of the potential for serious issues may warrant charging a higher than usual security deposit.  The Virginia Residential Landlord and Tenant Act allows a security deposit of up to two months' rent, while a common law lease can charge anything that is not "excessive."  If you are not in a VRLTA situation, I would strongly recommend considering asking for a security deposit of between 6 and 12 months of rent.  I believe the risks involved could warrant an argument that such an amount is not excessive and it keeps you protected in case of a prolonged dispute.  The advantage of a high security deposit is that you do not give possession of the property until the deposit is paid, and if the deposit is not paid, you don't have to evict the person, since they never got to move in to begin with.

Finally, you should consider letting the State Department know that you are willing to lease to a diplomat.  The State Department likes having landlords that are willing to do so - it helps with diplomatic relations - and letting them know this in advance will make them more likely to work with you if an issue comes up.  For example, if your diplomat really does stop paying rent, you can ask the State Department to request the foreign country waive the diplomat's immunity, and if they do not, declare the diplomat persona non grata and have them dismissed from the country.  There's a good chance that failure to pay rent alone will not lead to an immunity waiver or a PNG declaration from the State Department, but if that diplomat's had other issues, non-payment of his rent could very well be the straw that breaks the camel's back.

Discrimination

Now, looking at the above, some of your alarm bells may have gone off about housing discrimination.  Charging different people different security deposits, or simply refusing to rent to a class of people, probably sounds like a problem to you.  Good, all landlords should think this way.  However, at present there is no law that bars you from "discriminating" against diplomats in renting out property.  As such, you can refuse to rent to diplomats, or charge higher security deposits to diplomats.

Conclusion

Diplomatic immunity has a surprising impact on landlord/tenant law.  Specifically, diplomats cannot be evicted.  This should cause any landlord to approach a diplomatic tenant with caution.  Nonetheless, by and large diplomats are reliable payers, and landlords should not be afraid of renting to them just because of the challenges that might arise in the rare case of a bad diplomat-tenant.  If you are considering renting to a diplomat and would like to discuss your options, or if you are a diplomat-tenant having trouble with your American landlord, please feel free to call (703)281-0134 or e-mail sleven@thebaldwinlawfirm.com to set up a consultation with me to discuss your options.  Your initial consultation is free for up to half an hour!

The Paycheck Stops but the Bills Don't - Government Shutdowns and Child/Spousal Support

As always, please review my disclaimer before reading this post 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

As an attorney who practices in Northern Virginia, it's fairly unsurprising that many of my clients, opponents, potential clients, etc. are federal employees.  Federal employees face an unusual array of challenges when it comes to family law to begin with.  Consider, for example, an undercover intelligence official, who cannot submit his true paystubs to court, cannot explain to the court why he cannot submit his true paystubs, and cannot even tell his lawyer why he cannot submit his true paystubs.  Well, now federal employees are facing a whole different issue - what to do with those spousal and child support payments they might have coming due when they aren't getting paid, either because they are furloughed (meaning they cannot get a new job in the meantime, but have no guarantee of ever getting paid for their time off), or because they are working without pay (although they at least know they will get paid eventually).

The fact of the matter is, child and spousal support are a continuing obligation, and a temporary halt in your pay does not relieve you from your obligation to pay.  There are options available to you, however, and I hope to cover those in this blog post.

Option 1 - Agreement

Perhaps the simplest way to solve this problem would be an agreement with the other party.  If you are on good terms with your ex, this may be a viable option.  You should contact your ex immediately to discuss the issue.  A reasonable solution might be to suspend payments while you are going unpaid, with an agreement that if you do not get back pay, those payments will be wiped out, but if you do get back pay, you will then pay the amounts you didn't pay while your payment was suspended.

Please note, however, that if DCSE is involved in your case, this method will not be possible, as DCSE cannot agree to short-term changes without court involvement.

Option 2 - Court Order

A court ordering support is required by law to consider only your "current" situation.  If you are currently being unpaid, and it is not your fault, then a court has to consider your income at $0, and re-do your support accordingly.  Unfortunately, that's where the simplicity of this solution ends.  Consider, for example, that from filing until trial, it could easily be many months, even close to a year, and the shutdown will almost assuredly be over by the time your case is heard.  An alternative option would be to file for a modification, knowing it won't be granted, but then to file a motion for pendente lite relief to get your support reduced near immediately (a motion for pendente lite relief can usually be heard within a week or two of being filed, and sets your support pending the final hearing).  Once the shutdown ends, you can then withdraw your motion.

This is a complicated process, however, and the odds that you will make a mistake without representation are high.  If you do hire an attorney, you are likely to end up spending more on attorneys' fees than you save in support.

Option 3 - Suck it up and Pay

If the prior two options are not available to you, then you may just need to scrape the money together and pay, recognizing that it unlikely that the shutdown will last beyond one monthly payment (although given the current acrimony in Washington, that's certainly not a guarantee).  There's not really much more to say about this option, for the majority of people for whom option 1 is not available, my guess is this option will be your best bet.

Option 4 - Unilateral Non-payment

This is the most dangerous option.  If options one and two aren't available to you, and option three is actually impossible for you, then you may have to just not pay.  Maybe DCSE and/or your ex won't take any action, but there is a chance they will.  If they do, you will definitely be found to have an arrearage for the unpaid amount (which will accumulate interest).  You will also risk going to jail, although jail time on a first violation is unusual and it cannot be ordered if you are able to prove that you actually could not pay through no fault of your own.  There could be some negative long-term consequences to taking this option, but if it's your only choice, then it's your only choice.

Conclusion

The government shutdown presents a unique challenge to federal employees who owe support.  The presumed temporary nature of the shutdown narrows the options available, and just about every option has some undesirable component to it.  Nonetheless, there are options, and you should know them before you take action.  If you are a federal employee who is going unpaid through this shutdown and you would like to review what options are best for you, or if you are being paid support by a federal employee and want to know what actions to take to protect yourself, please feel free to call (703)281-0134 or e-mail sleven@thebaldwinlawfirm.com to set up a consultation.  Your initial consultation is free for up to half an hour!