Receiving a notice of termination or to vacate can be stressful. The information below is designed to help you understand your rights and whether or not you have good defenses to stay in your residence. Provided by our Williamsburg Newport News Landlord/Tenant Attorneys.
Which Laws Apply
The first question to ask in any Virginia Landlord Tenant dispute is what law applies. The majority of the time, the Virginia Residential Landlord Tenant Act applies. However, there are certain instances where only the contract and common law apply. In the summer of 2017, those distinctions will change and most tenancies will fall under the Act. The distinction is important because the protections for tenants under the Act are far superior to those afforded in most lease agreements.
The tenant has responsibilities under both the lease agreement and the laws of Virginia. Much of the times, the responsibilities under each overlap. The lease agreement usually requires more than is required under the law. Under the Virginia Residential Landlord Tenant Act, tenants are required to follow a set of rules designed to protect the dwelling, the occupants, and the neighbors. These include basic maintenance responsibilities and agreements to keep the peace. A violation of these responsibilities may result in a landlord taking action to evict the tenant.
The Virginia Residential Landlord Tenant Act provides a mechanism for landlords to address a tenant’s breach of the lease agreement or the Act. A “material noncompliance” by the tenant with the rental agreement, or a violation of the Act “materially” affecting health and safety, triggers the landlord’s rights. The word “material” is a legal phrase that usually means “significant” or “substantial”. Whether a violation is “material” is usually a matter of interpretation and likely requires a judge to review all of the facts.
Should the landlord determine that there is a material noncompliance, she can send written notice to the tenant stating the acts constituting the noncompliance and telling the tenant that the agreement will terminate in 30 days if the breach is not remedied in 21 days. If the tenant fixes the problem within the time period, then the rental agreement remains in place.
Unfortunately, there are times when a breach may not be remediable. This means that the tenant can’t fix the problem. Landlord’s often take a liberal approach to defining this term and include a myriad of different actions that seem remediable. Many times these involve criminal activity on the premises. The laws and courts of Virginia have not defined “remediable.” It likely requires an analysis of the practicality and cost of the remedy. Thus, it will be determined by a judge on a case-by-case basis.
If the landlord asserts that a breach cannot be remedied, she can send notice that the agreement will terminate in 30 days, regardless of the tenant’s attempt to fix the problem. Further, when a breach involves a criminal or willful act which poses a threat to health or safety, the landlord can terminate the tenancy immediately and begin to take possession through expedited court action. If the criminal activity involves drugs, the tenant is assumed to have knowledge of the activity, even if done by other occupants of the premises. The landlord has a higher duty to prove that the tenant willfully violated the Act or the lease agreement.
If the residence falls outside the Virginia Residential Landlord Tenant Act, the terms of the contract will set the parties’ rights and responsibilities.
What to Do if You Get an Eviction Notice
If you are current on your rent and you get an eviction notice, you should act promptly to see if you can work with your landlord to correct the problem. Hopefully, you will be able to fix the problem promptly and stay in your residence. If the landlord is uncooperative and you believe you have a defense to the eviction, you should sit down with an attorney to discuss the problem.
The Williamsburg Newport News Landlord/Tenant Attorneys at Collins & Hyman are prepared to help you defend your rights as a tenant. Even if you haven’t been sued yet, we can help you negotiate with your landlord to try and keep you in your home. If you have been sued, we can vigorously defend your rights. Call today for a consultation. 757-645-0827.
Gregory S. Bean is one of our Williamsburg Newport News Landlord/Tenant attorneys at Collins & Hyman PLC.