Last updated on October 24th, 2018
Andrew: Alright, it is Wednesday. It is time for Law Talk and today we actually have a really interesting topic for you guys. Today we’re talking about tenancy law and just landlord/tenant relations and how that works out from a legal standpoint. So, is there anything you want to open up with, just a broad overview of your thoughts on tenancy law in Virginia specifically?
Andrew: Well yeah, I was going to say because it varies a lot state by state, so we’ve actually been researching Virginia law specifically and how they vary from other states for the last couple things. So, I guess sort of do that.
Jessica: Yeah, I think you’re right, landlord/tenant’s really interesting because it’s something, most of us have rented a home at some point. Some of us are lucky enough to own, but most of us have rented a home at some point. So it’s a part of law that we encounter every day, and kind of like you and Jacob were talking about contracts last week. This is something that we encounter people on a daily basis who don’t think about it.
Jessica: I think it’s also an area where there’s a lot of confusion. Both for landlords who own places and don’t know what their rights, are and for tenants who are renting and don’t know when they can get in trouble or what their rights are. So I think it’s a very, it’s an interesting area where there’s kind of a lack of knowledge, but it’s also something we all deal with every day.
Jessica: Virginia, specifically, I think tends to favor landlords pretty heavily. There tends to be a lot of resources available for a landlord to exert their rights and not as many for tenants.
Andrew: Oh that’s interesting, yeah.
Jessica: Yeah, so it’s a little one sided or a little lopsided I guess, but …
Andrew: Alright, do you want to get your microphone a little bit closer really quick.
Jessica: Yes, of course.
Andrew: But yeah, I think it’s really interesting, and that’s sort of what we were talking about with it varies state by state, because each state has individual laws which, as you mentioned, favor either landlords or tenants.
Jessica: It’s also a really fact intensive process. So, there’s a lot of … and we talked about that too, how there’s standards in the Virginia law, there’s all these standards set forth about this is how you do this, but then it’s also super fact specific depending on what the facts are in your case.
Andrew: Like what was in the note you taped to your tenant’s door and what rights. Yeah ’cause I think … Probably a good way to get into this is sort of, this sort of know your rights standpoint. What individual rights do both tenants and landlords have in these interactions? ‘Cause again, bringing back what we were talking about last week, this is something that people take for granted as an every day aspect of the law. Well what rights do you have as a tenant? What can your landlord do? When can they enter your house? All of these every day things that people take for granted until they actually come up, and then there’s a confusion around them based on the varying laws from state to state, confusion about national laws. It’s just a whole mess. And we’re going to try to sort of sort out today by answering specific questions about what rights you have in certain situations. So I there any particular topic you wanted to start this off with? Because we sort of have a laundry list of … there’s so many things we can go into for this, but …
Jessica: Yeah, I think a good place to start … I guess a good place to start would be the difference between federal housing law and state housing law. Just to kind of put a nice little umbrella over it. Most of the regulations concerning housing come from state law in terms of how rent works and how this contract’s going to work and stuff like that, but there are definitely federal regulations put in place both to protect tenants and landlords. On the tenants side, specifically, there is … I just learned this today, but there is a law enacted in 2009, that was a temporary law, that was designed to protect tenants living in buildings that were foreclosed on, because you know what happened in 2008?
Jessica: And that was intended to be a temporary law. It expired in 2014, and the law basically required that anybody that bought a building that was foreclosed on had to honor an existing lease if it had 90 days or more left on the lease, and even if there weren’t 90 days left on the lease, you had to give 90 days notice of you have to vacate.
Andrew: ‘Cause they’re essentially buying the contracts, that the company had made with the leasee person.
Jessica: Right, and the normal rule is … This is getting a little of ourselves, but the normal rule is someone who buys a property can terminate existing leases, but this basically gave protection for someone who’s living in a building that got foreclosed on. So that expired in 2014, but in May that got renewed and it got turned into a permanent law, which so is pretty cool.
Andrew: Oh, that’s cool, yeah.
Jessica: Yeah, so there’s a, it’s a little bit more protection from your house getting sold out from under you if you’re not responsible for the mortgage. And then there’s also stuff, there’s also obviously housing assistance and that’s a whole other body of law that I think is way too complicated to touch on today. That’s a federal law. But then there’s also the fair housing act.
Andrew: Yeah, this is something I know I’m particularly interested in. Discrimination specifically in housing efforts and stuff.
Jessica: When can a landlord, if you’re applying for housing, when can a landlord say no.
Jessica: You can’t live here.
Andrew: And I guess the best way to describe that is there are certain, they’re called protected classes, that landlords can’t discriminate on. So they can’t say, “I’m not going to lease to you because you’re a woman”, for example. The most common ones are usually gender, race … I think, is religion a protected class? I don’t actually know. I think so.
Jessica: Yeah. Yeah, the kind of stuff you’d think about you can’t be denied employment over.
Andrew: Yeah. Yeah and I know one particular that we’re interested in is disability, and we actually have several articles on service animals, and can a landlord deny you a house because you have a service animal or service dog or something? And the answer is no, but with specific caveats. There are specific rules and regulations that they need to follow, and again, that’s sort of what we’re going to get into today is because landlord tenant law is so specific to the actual elements of your case, of your situation. From a national level it’s usually these broad sweeping things, but a lot of the meat of these arguments are based on state laws.
Andrew: So I guess one good place to start, now that we’ve talked about natural rules of getting into a lease, is the rights you have when you’re first starting a lease. So I know one thing we were mentioning before we started today was security deposits. Which is something that everyone deals with. I know I haven’t really rented much until the last couple of years, and I was like security deposits are weird, in general.
Andrew: So do you want to sort of talk to what rights both landlords and tenants have based on security deposits and that whole area of the law?
Jessica: Yeah. So the security deposit it’s pretty much what is says. It’s a deposit to make sure that you don’t basically up and leave causing damage to the property that’s in excess of what you’ve given to your landlord. So I think in Virginia it can’t be more than two months rent. Which if you think about it, it’s reasonable. If you live somewhere for a year and you pay $1000 rent on it, if you cause damage to the property, basically that the landlord needs to have some idea that he’s going to be able to fix that so he can continue to make the property –
Andrew: Buffer money, essentially.
Jessica: Exactly, yeah.
Andrew: And again the whole point of security deposit is it’s a deposit, so they’re holding the money until the end of the lease and then you’ll get it back. So reasonably speaking, it’s not like you’re just giving your landlord an extra two months rent, as long as you don’t destroy the property.
Andrew: Which is I think sort of where this ties into what we’re talking about today, which is like well what are these rights surrounding a security deposit? Can your landlord keep a deposit because they want to repaint the kitchen? Well, the answer is no. So do you want to talk to that and the rights that protect both tenants and landlords about, surrounding the security deposit.
Jessica: Yeah, so when you sign your lease … Again, I know you guys talked abut contracts last week, but that’s a contract. That’s a contract between you and the landlord, and there’s usually going to be terms in the contract, both for what the landlord’s responsible for and what you’re responsible for. And there’s also going to be stuff at the end of as a tenant what are you responsible for maintaining versus what’s the landlord responsible for maintaining? And then also when you move out, what’s the procedure? Are you supposed to clean?
Jessica: So when you leave your landlord has an obligation, if they’re going to keep some of your security deposit [crosstalk 00:08:58] to give you a list, an itemized list, and there’s a timeframe that they’re supposed to give it to you. I believe it’s 45 days.
Andrew: Yep, I checked this morning. It’s exactly 45 days.
Jessica: Yeah. So and you, here’s the other thing that a lot of people don’t know about is you can request an inspection, so you can request that someone, a representative from your landlord’s office, or your landlord, comes through and looks at the apartment before you leave to make sure that everything’s clean, but they’re not required on their own to give that to you. So you can request that but …
Andrew: Basically like a check in, like hey what are the things you want me to clean up or fix before we leave to get our full deposit back?
Jessica: Yeah, and as a tenant, you’re right. That’s a good point to make sure that you’re aware of what the charges are going to be before you get the bill 45 days later. And then so what the landlord’s only supposed to keep is if it’s stuff that’s mentioned in the lease. Like if you didn’t clean, so they can keep cleaning fees and they can keep basically the cost of repairs.
Andrew: Anything outside of normal wear and tear I think is the exact term.
Jessica: Yeah. Yeah. But the normal wear and tear I think has, there’s a little bit of wiggle room. Because what’s normal wear and tear? Well if you’re a single person that works 60 hours a week and you don’t have any pets, you’re not going to have any wear and tear, but if you’re a family of five and you’ve been renting a house and you have two dogs, that’s had significantly more wear and tear. So what gets kept out of the security deposit for a family of five is probably going to be different for the single person that doesn’t have any pets.
Andrew: And I know one thing that comes up a lot with these sort of arguments is how to dispute these security deposit charges and stuff, because that’s something that comes up all the time. I know we mentioned that earlier though the example of well my landlord wants to repaint the kitchen so they’re keeping my entire $2000 security deposit. That’s not … unless you purposely painted it rainbow colors or something, that’s not normal wear and tear.
Andrew: So how would you go about disputing those claims, because again we mentioned that you have to have an itemized list. Obviously there has to be away to defend that list that the landlord makes to some representative body which is as you know …
Jessica: Yeah. Unfortunately, I can’t give you the exact what you would go to court and say right now off the top of my head. But there is a specific section of the Virginia code, and if you Google Virginia Code Security Deposit it’ll come right up, and it basically gives you all of the reasons that the landlord can keep your security deposit. All of the reasons that they can’t keep your security deposit. And so it’s pretty handy little tool, and again you can demand that if they’re not giving you that …
Jessica: List, the itemized list, that’s basically not in compliance with the law. So that would be something to go to an attorney over. I think it’s worth it.
Andrew: I guess what I was fishing at before was suing them in small claims court, specifically.
Jessica: Yeah, right. Okay.
Andrew: Because in most cases the security deposit will be below the threshold in Virginia for what you can sue for. So if they keep the entire thing and you disagree with it, you can hire an attorney to come talk to the judge for a couple hours and get that back hopefully.
Andrew: Yeah, because they have to follow that list that you were just talking about. Like what are reasonable things? Because it’s at the judge’s discretion. Is this something that a reasonable, like the policy’s sort of like reasonable wear and tear thing we’ve been talking about.
Andrew: Alright, so let’s go on to another topic. Was there anything that you wanted to particularity go into? I have again, a list of things that are … There’s a lot of things that landlords often, like bad landlords usually, but don’t, either don’t understand or will take advantage of and stuff like that.
Andrew: So I guess one good way is notice to enter someone’s apartment, because this is another right that tenants generally have that they don’t really think about much, but it’s sort of the right to enjoy your home in peace.
Jessica: Yeah. The Covenant of Quiet Enjoyment is the official property term, but it’s also in the Constitution. It’s the fourth amendment, reasonable expectation of privacy and I mean that amendment protects you from the government, but there’s still a right to privacy where you live. So even though someone owns that property, you have the right to basically not be disturbed by your landlord without reasonable notice. Which, in Virginia, I think we said it was 24 hours. They have to let you know before you come in. I don’t know if it’s different if you’re asking for repairs.
Andrew: Yeah, so if you specifically put in a maintenance request, I think it is. Then they can enter whenever. But other than that, as far as I know, they need to give you definitive 24 hour notice before they do anything.
Jessica: Right, yeah, so they could have your key, and they can use it to let in a maintenance person, but they have to give you … they have to let you know this is when we’re going to be here.
Andrew: You either have to pre-approve it or tell them yeah that’s okay. Because I know this is a problem that often comes up when landlords, especially near the end of leases, are showing new tenants. They can’t just bring a bunch of tenants in when you’re in your pajamas making eggs in the kitchen. You should have an expectation of, well I should know when people are going to randomly come into my house. So …
Jessica: But again, and I don’t mean to go off on a tangent, but again when you think about how do you fix that if your landlord’s coming in? The way you get a landlord to change what they’re doing if you think that they’re breaching, whether it’s the contract which would be in the case of coming in at a time that they’re not supposed to, or the law, if they’re not repairing things like they should. You can file a tenant’s assertion, and on a tenant’s assertion you have to list the actual damages that you have, which is like a dollar amount. So if you’re at the end of your lease, and your landlord’s coming in to show your apartment to different people, what are your damages? So that’s, I think that that’s where it might be difficult to remedy the situation if your landlord’s doing that.
Jessica: It’s definitely a right that you have, and you should absolutely exercise that and tell your landlord if they’re doing x, y, and z. But it’s more of a situation where you get an attorney to write a strongly worded letter and shake their finger at them, because it’s hard to prove damages in a situation like that. Other than you breached this –
Jessica: Contract that’s about to be over anyways.
Andrew: And I guess that’s a good transition point into another right that is outlined in the Virginia code, but as we mentioned it’s very slippery in relation to landlord tenant law. Which is withholding rent. And this is something, this is one of the main ways that you can punish your landlord, but it’s a very slippery slope to go down. And you need to make sure you are well aware of the law before you do it. Otherwise they could end up suing you. So do you want to give like a brief outline of withholding rent as it relates in Virginia, because this is one of those rules that varies widely based on your state, so …
Jessica: Yes, so there’s a lot of things your landlord’s supposed to do. Sometimes that doesn’t happen, and a lot of people, I’ve spoken to many people who think, “Well my landlord’s not doing x and he’s supposed to, it’s in the contract, so I just don’t have to pay rent.”
Andrew: That’s not the case.
Jessica: Don’t ever do that. Even if you think that you’re 100% right, just don’t not pay rent. There’s a specific process, and like you said there’s very specific instances where you can not pay rent, where you’re allowed to do that, but usually it involves leaving, like moving out of your residence. When your landlord has breached the lease or has not, has failed to repair something, there’s this whole legal process. And it usually involves, like I said, filing that tenant’s assertion, which you just go to the clerk of whatever court you –
Andrew: Has jurisdiction over it.
Jessica: Have, that is local, yeah, where your house is and you file that and you state a specific dollar amount. And at that time you can ask to pay rent into escrow and what that lets you do, you continue to pay the rent but you pay it to the court.
Andrew: Yeah to a third party, not your actual landlord.
Jessica: Right. And so the landlord’s not benefiting from the rent, because they’re not doing what they’re supposed to be doing. They’re not upholding their end of the bargain, but that doesn’t mean that you just get to get out of the contract. So you’re paying it to the court and the court holds onto it, and at the end of that court case there’s a lot of different things that the judge can do with the money that goes into escrow.
Jessica: So if this is something that takes six months to fix, or if it’s something that takes a month to fix, there could be a lot of money in that escrow account or there could be not a lot of money in that escrow account. So at the end the judge could say, “Okay, you don’t have to give this money to the landlord, but the landlord has to use it to pay for repairs.” They can say, “All of this gets to go back to the tenant because the landlord didn’t do what they were supposed to”, or they could say, “Hey tenant, you’re off your rocker. This needs to go to the landlord”, and so the landlord gets all of it. There’s a bunch of different things. It’s basically up to the judge. But long story short is –
Andrew: Don’t just stop paying rent.
Jessica: Don’t just stop paying rent. There’s a very specific process that goes into it, and you need to keep paying rent. You just don’t have to pay it to your landlord.
Andrew: And this is definitely something especially, with paying rent, this is going to be a couple thousand dollars so you’re probably going to want to talk to a lawyer, to at least get an outline of well what should I do here.
Andrew: So I know one thing that’s really interesting with this, is the livability of the house. Especially now that we’re going into the winter months. If your heat breaks, and your landlord purposefully doesn’t fix it for some reason, and your house is like 30 degrees inside, that’s some time when you’re probably going to want to talk to a lawyer. This is a problem, and there’s a lot of cases like that where your house is basically unlivable because of the conditions. And yeah, there’s just a lot that goes into it and again it goes down a lot to the very specifics of your case.
Andrew: But as you mentioned, the big thing is don’t just randomly stop paying your rent, because that opens you up to a lot of liability. If you don’t do it for three months they can just come and sue you for like a couple thousand dollars.
Jessica: And there’s a lot of things the judge can … The judge can tell the landlord to fix it. The judge can tell the landlord that they have to pay you damages, because you’ve had to pay for a hotel or something. But they can’t do that if you don’t follow the rules, which really kind of stinks because there’s also this if your landlord doesn’t keep hot water, if there’s a gas leak or something, you have to give written notice to your landlord. So that’s the landlord’s rights, is they get to have written notice of this, this breach, and they get 30 days to fix it. Or like a reasonable time, is what the law says, but I think the assumption is that’s 30 days or so and only after you give them that reasonable time to fix it.
Andrew: Yeah, you have to …
Jessica: Does it go forward? So that’s the landlord’s rights on it, is they get to basically have a chance to fix something that they didn’t know about. You can’t just stop paying rent because of something that they didn’t know about.
Andrew: That’s a very good point, yeah. Because we’ve mostly been, or at least I’ve mostly been focusing on the tenant’s rights, but landlords do have rights as well.
Andrew: People also often vilify their landlords. “Oh this is a mean landlord.” They’re like –
Jessica: It’s easy to do, yeah.
Andrew: Yeah, but they do still have rights and …
Andrew: They should have the option to try and fix something after a reasonable time of it being reported. Which sort of goes again to the escrow account where there’s a third party that’s mediating this dispute.
Jessica: A third party, yeah.
Andrew: Yeah. Alright. I’m trying to think, was there anything else you wanted to specifically talk about today, related to either landlord or tenant rights?
Jessica: Yeah, I mean on the other … Just on the flip side if you want to talk about what landlords can do in –
Andrew: Yeah sure.
Jessica: Situations. We’ve talked a lot about what happens if you have a bad landlord but we haven’t really talked about if you’re a landlord and you have a bad tenant, which happens too. There’s …
Andrew: There’s horror stories of people destroying your poor little house, and apartment and stuff.
Jessica: And I’ve had friends that have been landlords of people that just … Anyways, so if you’re a landlord and you have a bad tenant, whether they don’t pay. Whether they are just trashing the place, even if they have bad hygiene. If it’s stinking up the unit or something, there’s things you can do. But again, it’s a specific process, and if you goof at one point of the process, you kind of have to start over again, because it’s a very specific timelines.
Jessica: So just really brief overview, as a landlord if there’s something … Unless there’s exceptions, but there’s a very specific process if you’re just evicting them for being a bad tenant. You can evict someone, there’s specific rules if someone commits a crime, or if you think that they’re genuinely unsafe, like they’re unsafe to be in that place. But that’s, those are very specific instances. In general, to evict someone for non payment of rent, there’s, you do, there’s a specific five day pay required. You give them a notice. You put it on their door. You say you have five days to pay your rent. At the end of that time period, you can then file for an unlawful detainer, which is basically the court process for starting an eviction.
Jessica: That’s a 30 day waiting period. At the end of that, you can get a court hearing. If the judge grants it, then you can get, I think there’s another 10 day waiting period and then you can have the sheriff evict someone. So even, and then I think if it’s for something that’s not non payment, so if it’s just a bad tenant that’s just trashing the apartment, it’s another 30 days instead of the five days. So it’s still a really long process.
Andrew: It’s still a long process.
Jessica: Because if you think that’s 60 days for someone that could trash your property.
Andrew: Or even just in rebellion, because they know you’re trying to evict them as well. So you could come in after the whole period and your stairs are gone or something, I don’t know.
Jessica: In theory, yeah, but then that’s why you have the security deposit, hopefully it’ll.
Andrew: Hopefully, yeah. And again, I hate the sort of thing of well if someone wrongs you, you can sue them, but you can generally sue in small claims court if your tenant just destroys your house above and beyond the security deposit.
Andrew: So there are ways to rectify that problem.
Jessica: But if you’re getting that serious, that someone’s tearing up your stairs, you definitely should call a lawyer.
Andrew: It’s a long process, and very complicated, and very specific about what you can and can’t do. And like you mentioned, if you break any part of the process along the way, it just gets even more complicated.
Jessica: Even if something as simple as, if you’re the tenant and you’re filing something against your landlord and it’s like a company, you should go to the … Make sure you have the specific business name to put on your complaint, because if you don’t have the specific business name it’s not a valid, that can be dismissed and you need to start over again with that.
Andrew: The actual wording of the notices you give each other is very specific. I know in the code, the Virginia code, there’s one section where it’s like these are the four things you need to have in, for example, an eviction notice. Make sure they’re there and correct.
Andrew: Otherwise, it’s not valid and that opens up defense for the other person. It just is a whole mess.
Jessica: Yeah so if you think, if you think that you’re going to have an issue with that, on either side, it’s probably best just to call someone [inaudible 00:24:23]
Andrew: Yes. Definitely, even just getting like, hey is this okay, just can I do this based on the code, is very much worth the time and effort it would take. Because again this process is just so long and there’s so many specifics. Alright, I think that’s about it for today unless you want to have any final thoughts, but it …
Jessica: Nope, yeah.
Andrew: Yeah. Landlord law is one of those things where it’s very very specific.
Jessica: It is.
Andrew: So …
Jessica: And the judge has a lot of latitude to kind of do what he or she thinks is fair in a situation, like there’s definitely specific things you have to do to comply but a lot of the codes surrounding housing issues in Virginia, it’s like well the judge can do this, and this, and this, if they want to. Or they can do this, and this, and this. So that’s, I guess that’ll be my last comment.
Jessica: Even what we started talking about at the beginning with the terminate, like at the end of a lease when your term expires, the judge is going to look at the specific how did you deal with this landlord? How did the landlord deal with the tenant? So, again …
Andrew: As well as the specifics of your lease, which is another reason, always read your lease guys.
Jessica: Yeah. Really.
Andrew: Because the specifics in there can, not supersede things, but complicate things especially in all of those areas we’ve been talking about today. Right. So that’s it for today. We’ll see everybody next week, same time, same place. And I hope you all learned a bunch about tenant law today. I know I certainly have enjoyed reading about it, so … thanks everybody.