THE VIRGINIAN-PILOT
Copyright (c) 1996, Landmark Communications, Inc.
DATE: Saturday, May 25, 1996 TAG: 9605240439
SECTION: REAL ESTATE WEEKLY PAGE: 30 EDITION: FINAL
COLUMN: LANDLORDS & TENANTS
SOURCE: GREG McCRACKEN
LENGTH: 65 lines
In previous articles I have touched upon the remedies available if either party breaches a lease. This is also the most commonly asked question we get because usually by the time someone has taken the time to pick up the phone and call a lawyer something has gone wrong.
The answer depends on the nature of the severity of the breach, whether the Virginia Residential Landlord Tenant Act applies, and the provisions of the lease itself.
If the VRLTA applies and the breach is very serious (e.g. no roof, no doors or windows), a tenant must first give 30 days written notice to the landlord.
Either party sending this type of notice should send it certified mail, return receipt requested so he will have proof of the date the notice was received. The landlord then has 21 days to fix the problem.
If they landlord does not fix the problem within 21 days, the tenant may move out and does not have to pay any more rent. If the situation warrants, the tenant may get substitute housing until the problem is fixed and does not have to pay rent to the landlord during that time.
If the breach is less serious, such as no hot water, heat or air-conditioning (if available), or other essential service, the tenant must again give written notice to the landlord. The landlord then must act within a reasonable time (this will vary depending upon the circumstances) to supply essential services.
If the landlord fails to fix the problem, the tenant can file suit and recover damages for the diminished fair rental value of the premises. This process early involves paying rent into the court after suit has been filed and, thereafter, allowing the court to determine what, if any, amount should go to the landlord and what should be returned to the tenant.
In certain instances, the court has the power to award injunctive relief (a court order prohibiting someone from doing something.) Additionally, if the court finds the landlord's failure to fix a problem is willful and the problem poses a danger to the health, welfare and safety of the tenant, the court may award attorney's fees.
What's good for the goose is good for the gander. If the tenant breaches the lease, the landlord must give written notice specifying the act or omission that constitutes the breach.
The notice must inform the tenant that the lease will terminate 30 days after receipt of the notice if the breach is not remedied within 21 days. If the tenant fails or refuses to correct the problem, it amounts to non-payment of rent and the landlord may then serve them with a five day pay-or-quit notice.
If the tenant still does not fix the problem, the landlord may move forward with an unlawful detainer action to evict the tenant. Again, if the situation warrants the landlord may seek an immediate eviction of the tenant.
If your lease is not governed by the VRLTA, it is then governed by common law. Common law is not set forth with the same structure as statutes but is still binding.
Although common law has no time constraints and notice requirement, as set forth in the VRLTA, anyone who follows these guidelines will do no harm to his case.
There may be situations in which filing suit is the first thing you could do; however, prudence and the VRLTA dictate that, except for extreme circumstances, the parties should give each other notice of any breach and be given the opportunity to correct it. MEMO: Greg McCracken is a Virginia Beach lawyer. Send questions to him
at 4705 Columbus St., Virginia Beach, Va. 23462-6749. The fax number is
552-6016; e-mail, hpmv(AT)livnet.com by CNB