The Ten Most Important Things You Need to Know
About Defendant's Residential Landlord Tenant
Practice in Virginia 2004
CLE on October 15, 2004, 2:30 p.m.-4:00 p.m.
Ronald V. Minionis, Esq.
Legal Services of Northern Virginia
603 King Street, 4th Floor
Alexandria, Virginia 22314
1) Even if you have housing code violations or problems
with your place, you cannot withhold paying the rent. At
the very least, you need to save the money, or you risk
losing your home.
In Virginia, the obligation to pay your rent generally is a separate and
independent obligation from the obligation of your landlord to maintain a fit and
habitable premises. In order for a tenant to successfully raise housing code
violations as a defense to a nonpayment of rent action, the tenant has to show
a) There exists a condition that constitutes or will constitute a fire hazard or
serious threat to the life, health or safety of the occupants;
b) Before the Summons for Unlawful Detainer was filed, the landlord was notified
in writing about the conditions by the tenant or by a housing inspector, and has
failed to fix that condition in a reasonable amount of time (usually not to go beyond
thirty days); AND
c) The tenant has paid into the court the amount of rent found to be due and
In other words, if the tenant does not have the money and has not given
proper notice, they cannot raise housing code violations as a defense. See Virginia
Code §§ 55-248.13, 55-248.25 and 55-248.27.
2) Document Everything in Writing:
Any time you pay rent you should get a receipt written by the landlord and any
time you complain about conditions in the premises you should also do so in writing
and keep a copy of that writing. A disturbing majority of landlords do not give
receipts when a tenant pays rent. If there is a dispute as to whether rent was paid,
this makes it very difficult for the tenant to prove payment, especially if the tenant
paid by cash. Until the law changes the advantages of paying by check is that
eventually you can get a back a copy of the check. Paying by money order or bank
check is not as good evidence as most tenants think. The problem is that you could
cash a money order yourself, and have the carbon copy of the receipt indicate that
it was paid to the landlord. Just having the carbon copy of the receipt does not
prove that the landlord actually got the money order. To trace a money order takes
time, and there often is not enough time in a landlord/tenant case, because it is
fairly quick turnaround from the first day in court to the trial (usually one or two
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Another way to document poor conditions in the premises or the condition of
the premises when you move out is to take pictures. It is much more difficult for a
landlord to claim you damaged the premises and withhold your security deposit,
when you can document that you left it in good condition.
3) Show up for your court appearance.
Although this item seems pretty obvious, the vast majority of times a landlord
obtains a judgment for possession and for money in an unlawful detainer action by
default. If the tenant does not show for the first return in a nonpayment case, the
landlord can also obtain an immediate judgment for possession and does not have
to wait for the statutory 10 day appeal period to pass before he can file for a writ of
possession. In other words, even if a tenant has no defenses whatsoever, they buy
themselves another 10 days in the premises just by showing up to court! If the
tenant thinks the landlord is not entitled to possession or is claiming money that is
not owed, the tenant should ask for a trial, which in most jurisdictions will be set for
another day (usually within one or two weeks). If the tenant wants to find out
more about the landlord's case, they can also ask for a Bill of Particulars. It is also
important to note that it is usually pretty difficult, without some very compelling
reason, to vacate a default judgment.
4) Know which law applies.
There are basically two different sets of laws that apply in landlord/tenant
cases. As a general rule the Virginia Residential Landlord Tenant Act ("VRLTA")
applies (Virginia Code §§ 55-248.2 to 55-248.40), but there are numerous
exceptions to this. The most common exception is what is called the small landlord
exemption. In Northern Virginia, when the residence is a single-family residence
and the landlord is a natural person or their estate, if the landlord owns four or less
rental units, the VRLTA does not apply. Instead, common law applies which is
generally codified in the Virginia Code §§ 55-217 to 55-248. For all of the
exemptions See Virginia Code § 55-248.5.
5) In a nonpayment case, you have a right to redeem.
With both VRLTA and non-Act Landlord/Tenant cases, a tenant can pay all of
the rent and arrears, court costs, late charges agreed to in a written rental
agreement, and reasonable attorney’s fees on or before the first court return date
to either the landlord or the court and the case ends! A landlord is thereby obliged
to take the money and let the tenant stay in the premises. This can only be done
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once every twelve months, however, with the same landlord. A common issue that
comes up is what are reasonable attorneys fees. In some jurisdictions, judges rule
that attorneys fees are only awarded if the Plaintiff wins his case, and therefore
there are no attorneys fees at the time of redemption. Other jurisdictions allow for
some attorneys fees for filing the Summons for Unlawful Detainer (usually not more
than a $100 or $150). Keep in mind, however, that if the rent sued for in the
Unlawful Detainer was for August rent and any future rent up through the date of
judgment, and the first return is on September 7th, then to redeem on September
7th the tenant would also have to pay the September rent and a possible late fee,
because it is already past due. See Virginia Code § 55-243.
6) Your landlord may have waived her right to possession
of the premises.
With VRLTA cases, a landlord can waive her right to possession of the premises
in nonpayment, lease violation, or lease expiration cases if the landlord accepts the
payment of rent after the notice period has expired and the landlord has not
reserved her right to get possession of the premises. Under Virginia Code § 55-
248.43:1, a landlord can either reserve her rights prospectively in the termination
notice they serve on the tenant, or she can reserve her rights by giving a
reservation letter to the tenant within five business days of receipt of the rent. If
the landlord accepts rent without the reservation of rights, the landlord has waived
her right to obtain possession under the original termination notice.
Note that a landlord can also waive rent to possession if she accepts rent
without reservation from any other source, such as when the local housing
authority pays a portion of the tenant's rent in Section 8 subsidized rent cases.
Even if the landlord has reserved her rights in the termination notice, however,
if she accepts rent after she has obtained a judgment for possession but before a
writ has been issued, without reserving her right within 5 business days of receipt
of the rent, she no cannot obtain a writ of possession and can therefore not evict
7) Tenants are usually responsible for the behavior of their
guests or occupants, especially with Public Housing or
Section 8 subsidized housing.
Many leases hold a tenant responsible for the actions of their guests or
occupants, and all public housing and Section 8 leases do this. If a tenant's guest
gets caught with drugs on the premises, for instance, a tenant can potentially be
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evicted due the behavior of their guest. Most tenants incorrectly assume that they
are only responsible for their own conduct. According to the Supreme Court in
Department of Housing and Urban Development v. Rucker, 122 S. Ct. 1230 (2002),
even an innocent tenant who is unaware of illegal activity can be evicted for the
conduct of their guests.
8) With roommates or group home situations, you
generally are jointly and severally liable for the rent.
Be very careful when choosing a roommate or deciding whom you will sign a
lease with. Under the terms of most leases, each tenant is jointly and severally
liable for any and all breaches of the lease, including nonpayment of rent. If your
roommate keeps on playing his stereo loud at night and this is a lease violation, you
can potentially be evicted for your roommates actions. Moreover, if your roommate
sneaks out of town without paying his share of the rent, the landlord can sue you
for your roommate's share of the rent! The landlord can only collect the full rent
once, but she can choose to collect all of it from any of the tenants. While it may
be true that you can sue the roommate for contribution, you still have to be able to
locate him and collect from him. In the meantime, you can potentially be evicted
due to his nonpayment.
9) Another option to try and get repairs done, is to call the
If your landlord is not responsive to your requests to get repairs done, another
option is to call a housing inspector. It generally is important to be there for the
inspection because you want to point out the problems to the inspector so that they
do not miss something. If the inspector finds housing code violation, they will order
the landlord to make repairs. If the landlord does not make the repairs within the
specified time, the inspector can then potentially fine the landlord for not making
the repairs. One potential thing to keep in mind, however, is that if the conditions
are really bad in the premises, a housing inspector can also condemn the property
until it is fixed. This often puts the tenant in a bind, because they are without their
home while the place is condemned. The tenant can, however, sue the landlord for
the damages he incurred as a result of the landlord's breach of the lease by not
making the repairs (such as suing the landlord for the costs of staying in a hotel).
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10) A landlord has a duty to mitigate her damages.
Landlords have the general common law contractual duty to mitigate their
damages. If a tenant moves out early and breaks their lease for instance, a
landlord has to make reasonable efforts to get a new tenant and re-rent the
premises. The landlord cannot just do nothing and then try to sue the tenant for
the balance of the lease. As a result of this duty to mitigate, courts do not allow a
landlord to sue for future rent due under a lease when that rent has not yet
accrued, because that landlord would not be able to prove that they have met their
duty to mitigate their damages.
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