The Virginia Tenant’s Rights

by Kaamil Khan

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In Virginia, a residential lease is considered a contract; whatever terms contained within it will be enforceable against either party. Unfortunately, most lease provisions tend to favor the landlord. However, you as a tenant still have important rights and valuable remedies that you can use to make sure the landlord keeps your property in proper repair.

1. The Move-In Inspection

Before moving in, you as a tenant should take advantage of the opportunity to inspect the rental property. Although not required under the law, this Move-In Inspection will allow you and the landlord to discuss any problems together in person before the property becomes the tenant’s sole responsibility (see Section 2 below). Without doing this inspection first, it becomes more difficult for a tenant to claim that the property was already damaged when he or she moved in.

When conducting this Move-In Inspection, you should take pictures of problems or issues with the property and send a copy to the landlord. Be sure to ask for these defects to be fixed before you move in or very shortly after.

A landlord can also submit a written report outlining any issues with the rental property at the time the lease starts. If the landlord does send such a report to you, review it immediately. Any objections to this report must be made in writing within 5 days. Otherwise, similar to the Mold Disclosure Statement (see Section 3 below), this report will be deemed correct and could result in the landlord passing along damages that already existed at the time you moved in.

2. What must the landlord repair?

Generally, Virginia follows the strict rule that a landlord has no obligation to maintain any portion of the premises that is under the exclusive control of the tenant. This means that areas for your sole use are your responsibility to keep clean and repaired, such as the bedroom, living room, or kitchen and, if applicable, the yard or the porch on the property. However, your landlord will still be responsible for the “common areas,” places open to all the landlord’s residents such as the hallway leading to your apartment or the elevators in the building.

Even with these strict rules, the law still requires that the landlord ensure the following:
A. That the rental premises meet all applicable housing and building codes;
B. That the rent able property be in a “fit and habitable” condition;
C. All essential utilities such as the electrical, plumbing, sanitary, heating, ventilating, and air-conditioning systems be maintained in the unit;
D. Reasonable amounts of hot water, heat, and air conditioning are supplied during the appropriate seasons; and
E. Help prevent the accumulation of mold growth in the rental unit.

Provision (A) above requires that any structural or large-scale repairs by the landlord of the rental unit or building comply with applicable state, county, and local regulations. This provision can also apply to situations such as gas leaks or faulty electrical wiring.

The Virginia Code does not define “fit and habitable condition” as set out in Provision (B). This means that the rental property must be free from pests and vermin as well as other conditions that can affect the health and safety of the occupants. This refers to serious problems only and not just a minor inconvenience like a dripping water faucet.

3. Who cleans up mold?

A landlord is also responsible for preventing the growth of mold in the unit. If there is a serious accumulation of mold while you live there, the landlord must clean it immediately.

You must allow the landlord to enter the property so he can clean this problem, but if the mold growth is incredibly severe, you can ask the landlord to move you out of the property while it is being fixed. You should not be moved out for a period longer than 30 days and the landlord must put you up in a hotel or an equally comparable unit at no cost to you.

Some leases contain a Mold Disclosure Statement. This is a document that states there is no visible mold in the residence when the lease begins. Basically, unless you as a tenant challenge this disclosure, the court will accept the statement as true at the time of move-out inspection and when the landlord is deducting damages from your security deposit. It is your responsibility as a tenant to do a thorough check for mold and other problems when you move into the rental unit.

4. The Tenant’s 21/30 Notice: Getting the landlord to fix something

What if the landlord doesn’t fix what he is supposed to? If your landlord is not following a provision of your lease or one of the requirements outlined above imposed under the law and this is affecting your health or safety, you as a tenant should take immediate action. For situations like this, you can submit a 21/30 Notice. This notice gives the landlord 21 days within which to fix the problem. If he does not do so, then the lease is terminated 9 days later, 30 days from the date the notice was originally given to the landlord.

If the problem is so severe that it cannot be fixed, then this 21/30 Notice can actually terminate the lease within 30 days. The landlord is not given an opportunity to fix the problem. This type of notice is reserved for incredibly significant problems: the property is so dilapidated that it is about to be condemned or the landlord is allowing criminal activity, like drug dealing, to occur on the property.

5. The Tenant’s Assertion: seeking the court’s help to terminate the lease or reduce rent

If there are problems with the property that the landlord has refused or failed to fix in a timely manner, you as a tenant can file a Tenant’s Assertion in the local court to either terminate the lease or have rent reduced until the problems are fixed. To be successful, the court will look for the following:
1. That you provided the landlord written notice of the problem;
2. The problem is severe;
3. The landlord had a reasonable opportunity to fix the problem; and
4. That you are current on your rental payments.

Just like the 21/30 Notice (see Section 4), the Tenant’s Assertion is reserved for problems or conditions which pose a “serious threat to the life, health, or safety of the occupants.” You as a tenant must also have already submitted a work order to the landlord or made a previous 21/30 Notice which has not been addressed. Finally, the landlord is entitled to a “reasonable time” to fix the problem. How long will depend on the circumstances or the situation that needs to be remedied but there is a presumption that 30 days is more than enough time.

6. Withholding rent from the landlord

Some tenants think that they are automatically entitled to a rent reduction while waiting for the property to be fixed. Unfortunately, you as a tenant cannot withhold rent on your own. You must follow proper steps to have your rent reduced while the rental unit is in disrepair.

The easiest way to have your rent reduced would be to have your landlord agree to a rent reduction. Unfortunately, if you have a landlord who is not making timely repairs, the likelihood he or she would agree to a reduced rent is not very high.

You could fix the problem yourself and deduct this from the rent you owe the landlord. Before doing this, you should provide written notice of your intention to do so. However, the issue will be valuing your work, especially if you do the entire repair yourself.

The safest way to reduce your rent is to file a Tenant Assertion (see Section 5) in the local court. This way, you let a neutral judge decide how much rent should be reduced until the property is completely repaired.

Conclusion

As you can see, although basic repairs will be your responsibility as a tenant, the landlord must still handle major issues and problems with your rental unit. Be sure to do a thorough inspection of your rental property before moving in, especially for mold. You should also communicate any repair or rent reduction requests to the landlord in writing. While your lease agreement will be the primary document governing your relationship with your landlord, the courts and the law are there to help ensure that your rental unit is maintained in a clean and safe condition throughout the duration of your lease.

If you have questions about your residential lease or rental property, contact K.M. Khan Law today.

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