Landlord/Tenant Law--General Information

Landlord/Tenant Law

What follows below is a very brief summary of some important concepts of landlord/tenant law. Inasmuch as we are generally a consumer-oriented law firm, the article will be presented from primarily the tenant's perspective. This is not to say that the position which will be taken is that the tenant is always right (on the contrary, tenant's are regularly chastised herein). It's just that the tenant is generally in economically disadvantageous position compared to the landlord. We assume that the landlord can afford counsel, and the tenant, statistically speaking, may not be able to do so. In order to balance the playing field, we present the following.

This page is very much under construction If you have a general type question that you would like to see discussed here, let us know.

Link to the Virginia Residential Landlord and Tenant Act

There are two main "documents" that control the relationship between a landlord and a tenant. The first is the lease and the second is the Virginia Residential Landlord/Tenant Act . Sometimes, the lease will control, sometimes the Act will control. In all cases, something in writing will control. Rarely will it be a handshake, an oral promise or a stray representation about quality, sound levels, etc..

So the most important concept that is stressed at the outset of this article is: if you want something to be so in your relationship with your landlord (or for landlords, with your tenant), it better be in writing. If you want to prove that a condition existed when you moved in, put it in the contract or on your "punch-list." Pointing it out and verbally discussing it will not suffice to protect you. If you want what the landlord said would be (planting shrubs, cleaning a stain on the rug, etc.) if it's not in writing, and the landlord doesn't do it, you may not be able to get it done. We wholeheartedly agree that, in a perfect world (which should all be promoting), one's word should be as good as his bond, landlord/tenant law falls under business relationships where no one should be insulted if a demand for a written contract is commonplace. Plus, there are many wonderful landlords whose word is as good as their bond (and they expect the same from their tenants). Even so, get it in writing anyway.

The above warnings not only have application at the inception of the relationship between a landlord and tenant, but throughout the relationship as well. When problems arise during the relationship, written is better than oral anytime, especially when it comes to getting things repaired. New clients frequently tell us "we told our landlord a dozen times about the smell, or the leak or the break." We understand the first time might be orally, but the second time better be in writing if you expect to get some action, or in the absence of action, some money back on your rent. ("WHOA---money back on my rent!!! Can I do that?" Well, yes, but you have to do it the right way. See the below section entitled Rent Escrow.)

Rent Escrow

If the landlord has not been fulfilling his side of the bargain, you cannot simply stop paying him and expect to continue living in you apartment. The landlord will (properly) begin proceedings to have you kicked out. But sometimes there are situations in, on, or about the premises that make it unfair for the landlord to keep the full rent for that month (or longer). The law has set up a process which allows you a fairly easy to obtain "day in court" to discuss with the judge the situation. The process is called "Tenant's Assertion; Rent Escrow." A rent escrow is an account set up by the court to hold rent money so the judge can decide who should get it. Section 55-248.27 of the Virginia Landlord Tenant Act sets out the simple rules for filing your "tenant's assertion" and establishing the rent escrow. It is important that you follow the steps outlined there if you want to assure success. Essentially, the steps are: if it's broke, report it in writing. If it ain't fixed within a reasonable period of time (i.e., by the time the next rent payment is due), take yourself down to the courthouse and pay your rent into an escrow account set up by the court. A notice will be sent to the landlord as to when he/she can appear in front of the judge to explain what took so long to fix it (or why it is still not fixed). If the explanation is a good one, and you were not inconvenienced, the landlord will get the money (so only use this for the big stuff). But otherwise, the judge will allocated the rent between you and the landlord, depending upon what the judge thinks is fair.

How much will you get back? Well, generally it depends upon how long you have to look at, smell, listen to, suffer through, etc., the problem before the landlord fixed the problem. Pictures and calendars help in building your case. But the judge is limited to how much money is in the rent escrow. If the problem lasted months, and the judge only has a month's worth of rent to divide up, all you can get is a month's rent. So, in the appropriate situation, complain early, put it into writing, and put your money into a rent escrow at the court. But heed this warning: if you abuse the system, it will turn around and bite you. If the problem is a serious one, use the rent escrow. If it is petty, and you use rent escrow and lose, which you should, the next time you have a problem which the rent escrow could give you leverage, the judge will remember you. How do you know if it is serious? Use common sense. Or come and talk with a lawyer about it. As we indicate elsewhere, we charge only $75 for the initial consultation. We'll give you our opinion, and some guidance on what action you should take if a rent escrow is (or is not) appropriate.

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Page last updated: 02/14/08

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Denbigh Law Center: Lawyers serving the cities of Newport News, Hampton, Williamsburg and Poquoson, and the Counties of York, James City, Gloucester, Middlesex and Mathews (including the townships of Grafton, Hayes, White Marsh, Saluda, Tabb, Urbanna and Yorktown), in the subject areas of Adoption, Bankruptcy (Chapter 7 and 13), Divorce, Estate Planning, Landlord/Tenant law, Separation Agreements, Wills and Trusts. Please call us for more information at (757) 877-2244 or contact us via e-mail by clicking here.