THE VIRGINIAN-PILOT
Copyright (c) 1995, Landmark Communications, Inc.
DATE: Saturday, February 4, 1995 TAG: 9502020294
SECTION: REAL ESTATE WEEKLY PAGE: 04 EDITION: FINAL
COLUMN: LANDLORDS & TENANTS
SOURCE: Albert Teich Jr.
LENGTH: Medium: 63 lines
Q. Several months ago I rented an apartment to a tenant who I though was going to be really good. I am covered by the Virginia Residential Landlord-Tenant Act.
My tenant is now two months delinquent in the rent payments.
I know that I could allow the tenant to remain on the premises and accrue delinquent rent until the end of the term of the lease and then sue the tenant for the entire rent.
I don't think this is a good idea even though it was extremely difficult for me to rent the premises.
I know also that I can file suit to evict the tenant and obtain a judgment for rent due. I have heard that I might also be able to sue the tenant and obtain a judgment for the rent for the balance of the lease.
If I do that, may I do it at the same time I evict the tenant? Or do I have to wait until a later date?
A. You will have to wait until a later date to sue for any additional rent.
The Virginia Residential Landlord-Tenant Act does allow you to give the delinquent tenant five days notice in writing to pay the rent or to move.
This effectually indicates to the tenant that you are terminating the lease.
The code also states that the failure of the tenant to pay the rent or to vacate the premises within five days after the notice shall be a willful non-compliance with the lease.
The code then says that if the tenant has willfully failed to comply with the terms of the lease, the landlord may not only sue for unlawful detainer and a judgment for the rent due up until the date of eviction.
But he also has a right to actual damages for the breach of the rental agreement, which may include a claim for such rent as would have accrued until the expiration of the lease or until a new tenant rents the premises, whichever shall occur first.
The code also says that the landlord does have a duty to make a reasonable effort to mitigate actual damages for the breach of the rental agreement; therefore, once you evict the tenant, you must make a reasonable effort to re-rent those premises if you hope to collect the additional rent.
While you may have a right to sue for the unaccrued rent for the balance of the lease, even though you evict the tenant, your right probably is just about valueless because the tenant likely would have paid the rent in the first place if he had had the money.
It should be noted that this right to collect the rent until the end of the term really applies only to tenancies from year to year.
It would not, of course, apply to a month-to-month situation since if you evict this tenant, you basically have terminated the month-to-month lease and you have no further right to collect rent from that tenant and the tenant has no further obligation to pay rent to you. MEMO: Albert Teich Jr. is a real estate lawyer based in Norfolk. Send
comments and questions to him at Real Estate Weekly, 150 W. Brambleton
Ave., Norfolk, Va. 23510.
by CNB