Combo spoiler alert and disclaimer: A Virginia landlord-tenant lawyer is writing this. I know that my profession gives me a skewed view of life.
“Tenants don’t pay for an hour of my time to sit in my office and tell me their landlord is the greatest human on the planet, the rent is below-market, the house is fantastic, the lawn mows itself, and Mrs. Landlady bakes them apple pies on Sunday. I am absolutely certain that there probably are landlord-tenant relationships out there just like that one. But I never hear about those situations.” No. I hear about the misery………
- Landlord is a cheat.
- The furnace spews noxious fumes.
- The water heater broke and the blankety-blank landlord won’t fix it.
- The toilet overflows.
- The doors don’t lock.
- The oven never did work.
- On-site property management ignores me about the roaches.
- The upstairs unit leaks water down into mine.
- There’s mold in my apartment.
- I’ve moved out and the landlord wants me to pay ##@%*&!!! for BTFSPLKING %$@#!!!
I live in a world where every landlord tries to wring 13 months’ of rent out of every 12 months in a year.“Good news! It doesn’t have to be this way. However, as with most legal issues, there are correct ways to get things done or resolved. Because the knee-jerk, angry, on-the-spot self-help way is almost always the incorrect way, I thought I’d make a little list for those who live on the Tenant side of landlord/tenant law.”
- Discern an important point about landlord-tenant law before you sign the lease. Update: In 2019 the Virginia General Assembly took action to bring all residential rental property into the fold of the Virginia Residential Landlord & Tenant Act. Now, a landlord who residential rental properties CANNOT opt out of the VRLTA. Virginia until recently had two separate bodies of landlord-tenant law: the old common law which the colonists brought with them 400 years ago, and the much newer Virginia Residential Landlord Tenant Act. The common law was tilted very steeply in favor of landlords. The 2019 statutory adjustment of the VRLTA is much more evenly balanced, but still favors the landlord. It used to be that someone operating (4 or fewer, then more recently 2 or fewer) residential properties could elect to opt out of the VRLTA. That’s no longer a choice, because with the summer 2019 statutory update, ALL residential tenancies in Virginia are governed by the VRLTA. However, in our experience, there are plenty of old lease agreements out there that landlord and tenant executed (signed) BEFORE 2019 where landlord “opted out” of the VRLTA, as was allowed back then. Further, there are plenty of landlords out there who have no idea that the VRLTA swept them up in 2019.
- If you’re renting from a mom ‘n pop landlord, ask where they got the lease agreement. Some of the junky stuff landlords download for free or cheap off the internet refer vaguely to “in accordance with state law.” Having read item (1) above, do you see that for us in Virginia, vaguely referencing “state law” in a lease agreement doesn’t necessarily clear things up? You want to know that a Virginia attorney helped landlord prepare the lease and that you know which landlord-tenant law is governing your lease agreement.
- Read your lease before you sign it. Any time someone hands you a piece of paper to sign, it is for them, not for you. Repeat that using your inside voice a few times. “It’s for them, not for me.” I’ve seen lease agreements that were two pages long; others that were the better part of 20 pages with all the addenda pages included. But the terms (the individual details) are always tilted in favor of landlord. It is always OK for a prospective tenant to say to his prospective landlord, “I’ll just tootle over to my attorney’s office and have her take a peek at this before I sign it.” If landlord objects to you doing that, wouldn’t it be a clear signal for you to skedaddle?
- If you agree to pay rent on the first of the month, be able to pay rent on the first of the month. If your money comes to you from your employer in a pay arrangement where you don’t actually get the money in your bank account until the second or third of the month, then for heaven’s sake, don’t commit to paying rent on the first. Just don’t. Negotiate with landlord for a different rent payment date. Signing up to pay rent on a day of the month when you know you won’t have the money on that day is a recipe for certain misery.
- Move-in checklist. Create and save a detailed move-in checklist to record every little nit-noy discrepancy you can find immediately after you move in. It should be several pages long if you do an adequate job. You must record every little jot and tittle of scars and gouges and marks; places where you can see the prior tenant had a throw rug and sunlight has discolored some of the flooring, places where dirty hands have touched the wall ever so lightly, the tiniest little picture hanger holes in the wall, etc. Squeaky hinges. Worn carpet. Loose doorknobs. Is there a butter dish in the ‘fridge? Write it down. No butter dish in the ‘fridge? Write it down. Is there a properly sized light bulb in every single permanent light fixture and does every single light illuminate properly? Yes? Write it down. No? Write it down. Does every toilet flush? Does every drain drain? Are there screens on the windows – yes or no? Are the screens and windowsills clean? Turn on the hot water and flush the toilet again. You get the idea. Why? Because all the discrepancies you miss will be on landlord’s list of things he expects you to pay to be replaced or repaired when you move out. Mail a copy of the move-in checklist to your landlord, and keep a copy of it like it is worth money. If you landlord says you don’t have to make a move-in checklist, it is especially crucial to make a move-in checklist. If you make a move-in checklist on landlord’s online portal, make yourself a paper one, too. A screen print would be good. Mail a paper copy to the landlord and save one for your records – like that copy might be worth money one day. Do you really think landlord will share his copy of the fancy-schmancy online version of it after you move out?
- Pay on time. The single best way to maintain good relations with your landlord, bar none, is to pay the rent on time. I represent landlords, too, and can share from experience that nothing is more aggravating to a landlord than a tenant who pays partial rent, then a bit more rent, then a little more rent, and finally gets the month’s rent (and late fee) paid, but only in time to start the cycle all over again. Most lease agreements, and general bookkeeping principles, allow partial payments to be allocated to arrearages first. A late payment and the late fee do not “stay” with the month in which they were late. The practical result can mean that if you get too far behind for too long, you will forever be charged late fees, even if in your mind, you have caught up. Some landlords will sue for Unlawful Detainer every month for late rent, month after month, and they will be awarded their court costs and attorney fees against you, month after month. Run your household budget so you can pay your full rent on time. If you get behind, get caught all the way up, not just caught up for the current month.
- Never don’t go to court. Did landlord initiate a lawsuit against you for late or non-payment of rent, but then you eventually did pay or make some other accommodation with landlord, and landlord told you that you did not need to go to court? Go to court! Always go. If a court date is pending and you are the defendant, you want to know with absolute certainty that the plaintiff (landlord) removed it from the docket. Certainty comes from personally seeing it happen. My world is awash with tenants whose story is an unvarying version of “my landlord said I didn’t have to go, and he sued me anyway!!!” If you go and landlord is there, you will be able to watch landlord remove the case from the docket. If landlord doesn’t do that – you will be there to defend yourself. If landlord does not go, you can tell the Clerk or Judge yourself that you have paid and have it dismissed!
- Your landlord is not your concierge. In modern times, most laypersons view the lease agreement as a contract. In reality and in legal tradition, it is also time-limited conveyance of land. For the term of the lease (the time lapse set forth in the written agreement) that little parcel of land and the dwelling unit on it is yours, subject to your obligation to treat it with care and to give it back to the owner in decent condition at the end of the lease. But in the main, the property is temporarily yours during the lease. You take care of it. If you’ve had a catastrophe in or on the premises, certainly you should alert the landlord. But if a light bulb has burned out, don’t call the landlord and expect them to whistle over there to change it unless landlord has specifically agreed to something that minor in the written agreement. If you stop up a drain, you call the roto-rooter man, not landlord. If your kid tries to play Tarzan and pulls a light fixture out of the ceiling, you fix it.
- Communicate in written letters, in addition to whatever other convenient, modern, fast vector you and landlord prefer. There’s an overarching theme in this article: communicate in writing on paper. Your author is acutely aware that these days, we all reflexively reach for our cell phone and either call or fire a text at someone to “fix” a problem. Virginia landlord-tenant law and rules of evidence are quaint about that. Landlord-tenant law prefers first-class U.S. mail. Just sayin’. If your landlord requires you to use some sort of online trouble ticket system, use it; but follow up with a written and mailed communication and a screen print of your online maintenance request. Unless your lease agreement requires certified mail or return receipts, don’t spend money on those extras – first-class postage will do. Save a copy in your file.
- Modifications to your lease agreement need to be written down, and YOU can do the writing. If you and landlord ever make a verbal agreement to change something in the written lease agreement, write them immediately to memorialize the change. “Dear Mr. Landlord: the purpose of this note is to record our verbal agreement made in person today when you and I agreed that I have your permission to park a third motor vehicle on the property. If I misunderstood you, please let me know. Sincerely, your tenant.” Mail it first class mail to the landlord’s address mentioned in the lease agreement, and keep a photocopy. That way, you have something to protect yourself if landlord ever “forgets,” or does not reply in writing that his memory of that conversation was different than yours.
- Tenant’s assertions. Is something really out of control? No heat in the winter? No A/C in the dead of summer? Landlord is ignoring you and the situation? Self-help is tempting, but wrong. You don’t suddenly up and move out. You don’t award yourself the privilege to withhold paying rent. No matter how righteous your motivation, that is a losing action for a tenant in our state. The correct action is to file Tenant’s Assertions. This is a unique court action where the Tenant can pay rent to the Clerk of the local General District Court instead of to landlord. There are forms to initiate the Tenant’s Assertion online. Filing a Tenant’s Assertion and paying rent to Clerk of Court instead of to Landlord does two things for you: (1) gets Landlord’s attention fast and (2) generates an opportunity to talk about the problem with the Judge. Many times, for a serious problem that is landlord’s responsibility to cure, the Court will refund some or all of the rent and/or allow Tenant to break the lease and move out by Court Order (avoiding your risk of Landlord’s civil claim for breach of the lease later on).
- 60 days often really means 90 days. Your lease agreement probably contains a provision that it will renew automatically (usually for another equal length of time as the first) unless landlord or tenant gives the other notice of intent to not renew and that the notice is due to the other party 60 days prior to the date that the lease will automatically renew. Well guess what? The 60 days is not 60 days counting from the day you calculate to be your last day in the place. It is almost always taken to mean 60 days prior to the day rent is due for the month that will be the month of your last day in the place. That means if you want to be out at the end of July, for instance, your notice, mailed to landlord, needs to get to the landlord 60 days before July 1st – which requires it to get to landlord on or before the last day of April – not 60 days before the last day of July – and NOT merely 60 days from the date you mailed it. Do it late and you’ll find out how heartless a landlord can be!
- You don’t have to wait until 60 (or 90) days from the termination date to give your notice of non-renewal. Are you half-way through you first year in the unit and determined to live someplace else at the end of the initial term? The reason is usually unimportant, and you usually don’t have to give a particular reason in a notice of lease termination – just one sentence to say that you intend to not renew the lease. You can write landlord right then – there is no need to try to carefully time your notice of non-renewal until exactly 60 or 90 days before the automatic renewal date.
- A rent-splitting deal between you and other occupants is different than the written lease between you and your landlord. It is a virtually universal requirement among landlords that each adult who will reside in the rental premises must sign the lease agreement, and each person who signs the lease agreement is individually responsible to landlord for the full amount of the rent – regardless of how tenants have agreed among themselves to split the living expenses. Spouses, BFFs, fiancées, coworkers, students sharing the cost of off-campus apartments, adult children, etc. think it a good idea to move in together, and sometime later the bloom evaporates from the relationship after they’ve all signed the lease, and someone moves out. Then, the stay-in-place tenant lacks $$$ to pay the full rent. It is not a strong defense to landlord’s lawsuit for unpaid rent that you had a side deal with a co-tenant that co-tenant breached with you.
- Move-out checklist. As the end date of your lease nears and you prepare to move out, create a move-out checklist . Start with your move-in checklist. Were there screens on the windows when you moved in? Then you’ll want a record that they were there when you moved out. These days, it is a relatively simple thing to use a cell phone to make a video of you going from room to room, calling out the clean floor, the smooth walls, the clean glass in the windows, the clean bowl in the sink and toilets, etc. However, making a paper record in the form of a checklist is important in case at some point in the future your ex-landlord’s opinion of the empty premises differs from yours. You should plan to cure all of the defects that are not on the move-in checklist. Budget for moving out. For example, if the lease requires you to hire a professional carpet cleaner, you do not get to rent a carpet steamer at Food Lion and do it yourself. Have a receipt that you paid for the pro to do the chore.
- Don’t withhold rent. Pay your final month’s rent. Just do it. Virginia law does not contemplate a tenant abandoning their security deposit in lieu of paying the final month’s rent. Landlord can (and usually will) sue you and win that one. Budget for your move-out and for the future. You will need rent and security deposit for the new place before the security deposit from the prior rental comes back to you.
- Move-out mutual inspection. Invite landlord to schedule and conduct a mutual move-out inspection of the property. If you invite landlord in person, follow up with a short letter. Do that even if landlord says that they don’t care to attend a move-out inspection with you. If landlord does schedule a move-out inspection and does not show up, you do it anyway and make a written note that landlord didn’t attend. Use your move-in checklist as a guide for you to do a move-out inspection,. If nothing else, the move-out checklist documents your move out in case landlord ignores you.
- Deliver the keys on time. Deliver the key to landlord on or before the last day of the month of your lease. If you have a key in your possession on the first day of the next month, landlord has a good claim that you owe him rent for that next month. It does not matter that you might be half-way across the country by then – if you have a key, you are in “possession” of the rental premises, and you’ll owe rent. Turn in all the keys and make a note of it.
- Mail former landlord your new address. Virginia law takes a dim view of tenants who think they can disappear. Unfortunately, that view scoops up those who fail to observe the importance of properly informing former landlord of their future whereabouts by innocent oversight. Once you’re out and the keys turned in, write landlord to tell of your new address. It matters not that you have personally mentioned your new address to landlord, or that you’ve filled out landlord’s information sheet in the on-site management office or that you’ve personally seen landlord or his agent write down your new address when you told them. YOU write and mail a short letter: “Dear Landlord: we are your former tenants at 123 Any Street, Virginia Beach, Virginia. We now reside at 345 Other Street, Des Moines, Iowa. Sincerely, Former Tenant.” If you don’t do it, you are at risk of being served with notice of a lawsuit at the empty rental. It happens every day in Virginia. Not telling your former landlord where you’ve gone in the manner prescribed by landlord-tenant law does not inhibit the landlord from using the courts to seek a judgment against you.
- Be a good advocate for yourself. You are the first line of defense in you having a good rental experience and a fair relationship with landlord. Virginia does not have a room full of consumer advocates in a basement in Richmond watching over you from afar, ready to spring to your defense if landlord makes a misstep. Rental law favors the landlord. When you become a tenant, start keeping a notebook. File a copy of your lease agreement. File a copy of your contract for water, or electricity, or cable or telephone, or any other separate utility service. Keep copies of any document showing that you paid the rent. If you pay online, print copies of your bank statement each month and keep a copy in your rental notebook. In this article, I’ve recommended that you conduct certain communications in writing. Keep your copies of those letters in your rental notebook. If you take care of you by maintaining good records of your tenure as a tenant, you will be a long way towards a secure future. Don’t be the person who comes in to see me and says, when I’ve asked to see their copy of the Lease Agreement “Oh, I don’t know what I did with it.”
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