Volunteer Manual Helpline Eviction Defenses Outline - Virginia Eviction Legal Helpline
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Volunteer Manual Helpline Eviction Defenses Outline For Helpline Volunteer Attorneys Draft v. 4.02, 8/17/21 Acknowledgments Almost all of the substantive content of this outline was first adapted from materials originally created by Martin Wegbreit of the Central Virginia Legal Aid Society. Many thanks to Marty for his (apparently inexhaustible) generosity in providing guidance and responding to questions about the law and practice of eviction defense in Virginia. Thanks to Eric Dunn for his input on issues specific to subsidized housing tenants. The latest versions of the Eviction Legal Helpline Volunteer Manual should be available at www.evictionhelpline.org or by contacting VPLC. Please share comments, corrections, and suggestions with Phil Storey, phil@vplc.org.
CONTENTS
Introduction .......................................................................................................... 4
How This Outline Is Organized .......................................................................................... 4
Outline of Eviction Defenses ..................................................................................5
Old Judgments for Possession ............................................................................................ 5
1. Writ of possession can issue on an old judgment for possession. .............. 5
Before a Notice of Lease Termination Has Been Served .................................................... 6
2. Landlord has excluded or constructively evicted tenant without
court process. .............................................................................................. 6
3. Landlord has not yet served written notice of intent to
terminate tenancy. .......................................................................................7
Notices of Termination / Notices to Vacate ........................................................................ 8
4. Notice of landlord’s intent to terminate tenancy by right or upon
expiration of current lease period. ............................................................. 8
5. 14-day “Pay or Quit” notice. ........................................................................ 9
6. 21/30 notice for remediable breach. .......................................................... 11
7. 30-day notice for non-remediable breach. ................................................ 12
8. Termination notice for non-remediable, criminal or willful breach
threatening health or safety. ...................................................................... 12
9. Notice of termination because unit recently became uninhabitable
due to fire, flooding, other accident........................................................... 13
10. Notice of termination to former owner living in foreclosed property. ...... 14
11.
Notice of termination to tenant in foreclosed property. ............................ 15
12.
Notice of termination due to rehabilitation or conversion of a
building containing 4 or more dwelling units. .......................................... 16
13. Notice of termination due to rehabilitation or change in the use
of all or part of a manufactured home park............................................... 16
14. Notice of subsidy termination from housing authority. ............................ 17
Unlawful Detainer Filed..................................................................................................... 17
15. Upcoming Unlawful Detainer return date. ................................................ 17
16. Unlawful Detainer contested and set for trial on the merits. ................... 22
17. Judgment for possession granted, within 10-day appeal deadline. ......... 30
18. Judgment for possession granted, appeal deadline passed, but
within 30-day deadline for motion to rehear. ........................................... 31
19. Judgment for possession granted, 30-day deadline for motion to
rehear passed. ............................................................................................ 31
20. Writ of eviction issued to sheriff. .............................................................. 32
21. Notice of Eviction posted by sheriff. ......................................................... 33
22. Sheriff came as scheduled, eviction already carried out. .......................... 35
Eviction Legal Helpline Volunteer Manual, Vol. 3: Advice Callbacks & Eviction Defense Outline (v. 4.02, 8/17/21)
–2–Appendices .......................................................................................................... 36
Appendix A: Illegal Lease Provisions................................................................................ 36
1.
Provisions illegal under the VRLTA. Va. Code § 55.1-1208. ..................... 36
2.
Provisions illegal under the MHLRA. Va. Code §§ 55.1-1301,
-1306, -1310. ............................................................................................. 36
3. Provisions illegal in public housing and most subsidized housing
leases. 24 C.F.R. § 966.6. .......................................................................... 37
4. Unreasonable rules or regulations. VRLTA, Va. Code § 55.1-1228;
MHLRA by reference, Va. Code § 55.1-1311. ............................................ 38
Appendix B: Public and Federally Subsidized Housing ................................................... 39
1. Administrative/Procedural Rights ........................................................... 39
2. Lease violations and reasonable accommodation defenses. .................... 40
3. Section 8 tenants and termination by landlord. ....................................... 40
Eviction Legal Helpline Volunteer Manual, Vol. 3: Advice Callbacks & Eviction Defense Outline (v. 4.02, 8/17/21)
–3–Introduction
HOW THIS OUTLINE IS ORGANIZED
This outline describes legal defenses to eviction, organized according to the point in the eviction
process for which each defense is most likely to be available or applicable. Attorneys assessing a
case for a tenant should review defenses listed for the case’s procedural posture at the time of
the consultation, but also review defenses that may have arisen earlier in the process.
For example, if the landlord filed an Unlawful Detainer and the court has already set the case for
trial, the attorney should review the defenses listed in section 16, but also defenses listed in
earlier sections to see if they might apply. Some defenses, such as the right to redemption
tender, may have been waived if they weren’t exercised at the appropriate time. Other defenses
will still be available at trial.
Any defenses that the attorney believes might be available to the tenant, based on the facts of the
case known to the attorney, should be described in the case notes the attorney puts in the case
management system. This will allow VPLC supervising attorneys to review the volunteer
attorney’s assessment and provide helpful guidance to any legal aid or other attorneys a case
may be referred to for possible representation.
A Note on Public and Federally Subsidized Housing
This outline includes some defenses that are specific to tenants of public or federally subsidized
housing (public housing, Housing Choice [section 8] voucher holders, project-based section 8
tenants, tenants in low income housing tax credit units). In general, VRLTA defenses will also
apply in those situations.
Attorneys should appreciate that the stakes of eviction are much higher for subsidized tenants
than for others, for a few different reasons. First, the tenant’s household is unlikely to be able to
afford other decent housing if they lose their subsidized housing. Second, an eviction may bar
them from readmission to subsidized housing for up to five years or longer, depending on the
circumstances. Finally, the need for subsidized housing far outstrips the supply, meaning
waiting lists are years long and thus anyone evicted from subsidized housing has no practical
ability to get back in anytime soon.
When reviewing the case of a tenant in public or subsidized housing, in addition to the main
body of this outline, attorneys should review the information in Appendix B, which includes
administrative remedies and related deadlines. In general, we will refer these tenants to a local
legal aid program for more specialized case review, advice, and potential representation.
Eviction Legal Helpline Volunteer Manual, Vol. 3: Advice Callbacks & Eviction Defense Outline (v. 4.02, 8/17/21)
–4–Outline of
Eviction Defenses
OLD JUDGMENTS FOR POSSESSION
1. Writ of possession can issue on an old judgment for possession.
a. A landlord can get a writ of possession on a judgment that is up to 180 days old, even
if the tenant has paid all damages (with some exceptions), is current on rent, and has
not otherwise violated the lease.
i. Va. Code § 8.01-471: Writs of eviction, in case of unlawful entry and
detainer, shall be issued within 180 days from the date of judgment for
possession and shall be made returnable within 30 days from the date of
issuing the writ. … No writ shall issue, however, in cases under the Virginia
Residential Landlord and Tenant Act (§ 55-248.2 et seq. [recodified as § 55.1-
1200 et seq.]) if, following the entry of judgment for possession, the landlord
has entered into a new written rental agreement with the tenant, as described
in § 55-248.34:1 [recodified as § 55.1-1250]. …
b. Because of this it is essential to find out if the tenant has any existing judgments for
possession for their current tenancy. If there is an existing judgment, a landlord
could effectively counter any defenses to a subsequently threatened or filed Unlawful
Detainer by simply getting a writ of possession on the old judgment. (Though some
landlords do not seem to realize this.)
c. DEFENSES: If either of the following applies, the landlord should not be able to get
a writ of possession based on the old judgment.
i. Tenant made rent payments to the landlord since the judgment and the
landlord accepted rent without ever giving tenant the required notice of
reservation.
1. Va. Code § 55.1-1250(A): …a landlord may accept partial payment
of rent and other amounts owed by the tenant to the landlord and
receive an order of possession from a court of competent jurisdiction
pursuant to an unlawful detainer action … and proceed with eviction
for nonpayment of rent…, provided that the landlord has stated in a
written notice to the tenant that any and all amounts owed to the
landlord by the tenant, including payment of any rent, damages,
money judgment, award of attorney fees, and court costs, would be
accepted with reservation and would not constitute a waiver of the
landlord's right to evict the tenant from the dwelling unit. … Such
notice shall include the following language: "Any partial payment of
rent made before or after a judgment of possession is ordered will not
prevent your landlord from taking action to evict you. However, full
payment of all amounts you owe the landlord, including all rent as
contracted for in the rental agreement that is owed to the landlord as
of the date payment is made, as well as any damages, money
Eviction Legal Helpline Volunteer Manual, Vol. 3: Advice Callbacks & Eviction Defense Outline (v. 4.02, 8/17/21)
–5–judgment, award of attorney fees, and court costs made at least 48
hours before the scheduled eviction will cause the eviction to be
canceled, unless there are bases for the entry of an order of possession
other than nonpayment of rent stated in the unlawful detainer action
filed by the landlord."
ii. The landlord and tenant entered into a new lease since the date of the
judgment on which the writ is based. Va. Code § 8.01-471
• See also, Mullins v. Sturgill, 192 Va. 653 (1951) (“Generally speaking, any
recognition by a lessor of a tenancy as subsisting after a right of entry has
accrued, where the lessor has notice of the forfeiture will have the effect of
a waiver of the landlord’s right to a forfeiture of the leasehold. Slight acts
on the part of a lessor may be sufficient. Indeed, it has been ruled that any
act on the part of the lessor, by word or deed, with knowledge of what has
been done, which signifies his intention to affirm the lease, is conclusive
evidence of a waiver of the forfeiture.”).
iii. If the judgment for possession was for unpaid rent only (not another lease
violation), the tenant may exercise their extended right of redemption. (See
below, under Notice of Eviction Posted by Sheriff.)
iv. If the judgment was based on unpaid rent (not another lease violation), the
tenant may benefit from the special protections put in place in response to the
COVID-19 pandemic. (See the latest COVID Defenses Outline, available on
https://evictionhelpline.org/existing-volunteers/.)
BEFORE A NOTICE OF LEASE TERMINATION HAS BEEN SERVED
2. Landlord has excluded or constructively evicted tenant without court process.
a. Landlords sometimes do this by changing locks, cutting off utilities, diminishing
services, harassing tenants, etc. This is illegal in almost all cases. The landlord must
go through the legal process to evict a tenant. An illegally evicted tenant can sue the
landlord to be restored to possession and for damages, including (as of 7/1/2021)
statutory damages of $5,000 or four months’ worth of rent, whichever is greater.
i. VRLTA, Va. Code §§ 55.1-1243.1, 55.1-1252:
[1243.1] A. A general district court shall enter an order pursuant to this
section upon petition by a tenant who presents evidence establishing that his
landlord has willfully and without authority from the court (i) removed or
excluded the tenant from the dwelling unit unlawfully, (ii) interrupted or
caused the interruption of an essential service to the tenant, or (iii) taken
action to make the premises unsafe for habitation. … D. In a full hearing on a
petition filed pursuant to this section and upon evidence presented
establishing one or more of the factors in subsection A, the tenant shall
recover (i) the actual damages sustained by him; (ii) statutory damages of
$5,000 or four months' rent, whichever is greater; and (iii) reasonable
Eviction Legal Helpline Volunteer Manual, Vol. 3: Advice Callbacks & Eviction Defense Outline (v. 4.02, 8/17/21)
–6–attorney fees. (See the full section here.)
[1252] A landlord may not recover or take possession of the dwelling unit (i)
by willful diminution of services to the tenant by interrupting or causing the
interruption of an essential service required by the rental agreement or (ii) by
refusal to permit the tenant access to the unit unless such refusal is pursuant
to a court order for possession.
ii. MHLRA, Va. Code § 55.1-1311, incorporates VRLTA § 55.1-1243.
b. REMEDY: Tenant can call the police if the landlord is attempting to unlawfully
exclude them at the time.
c. REMEDY: Tenant can file in General District Court for injunctive relief and
damages.
i. Form DC-431: Tenant’s Petition for Relief from Unlawful Exclusion
(http://www.courts.state.va.us/forms/district/dc431.pdf)
d. EXCEPTION: A landlord may legally use self-help in some circumstances to evict a
tenant from a motel, boardinghouse, or similar transient lodging. Va. Code § 55.1-
1201(D)
i. The tenant is not using the property as their primary residence.
ii. The tenant has used the property as their primary residence for fewer than 90
consecutive days and does not have a rental agreement with a term of more
than 90 days – but the landlord must give the tenant a 5-day Pay or Quit
notice before, after the expiration of the 5 days, using self-help to evict.
e. EXCEPTION: If the tenant has never paid rent and does not have a rental
agreement, then their ‘tenancy’ is not subject to the VRLTA and self-help may be
used so long as it does not breach the peace and provided the landlord has given the
tenant reasonable notice to vacate.
3. Landlord has not yet served written notice of intent to terminate tenancy.
a. The landlord may not terminate a tenancy without first serving a proper written
notice (with one exception). See specific requirements for different types of notices,
below.
i. If the tenant’s breach is a “criminal or a willful act that is not remediable and
that poses a threat to health or safety,” the landlord may terminate the lease
immediately and file an Unlawful Detainer. Va. Code § 55.1-1245(C). In
practice, the landlord will also give the tenant written notice of the lease
termination.
Eviction Legal Helpline Volunteer Manual, Vol. 3: Advice Callbacks & Eviction Defense Outline (v. 4.02, 8/17/21)
–7–b. Presumption of receipt by tenant if the notice was properly addressed and mailed.
i. See, Manassas Park Development Co. v. Offutt, 203 Va. 382, 385, 124 S.E.2d
29, 31 (1962) (“[T]he mailing of a letter, properly addressed and stamped,
raises a presumption of receipt of the letter by the addressee, and a denial by
the addressee of the receipt of the letter raises an issue of fact for the jury.”);
Villwock v. Insurance Co. of North America/CIGNA, 468 S.E.2d 130, 134
(Va. App. 1996).
NOTICES OF TERMINATION / NOTICES TO VACATE
4. Notice of landlord’s intent to terminate tenancy by right or upon expiration of
current lease period.
a. Landlord must give adequate written notice of termination under VRLTA, MHLRA,
or Public Housing regulations.
i. VRLTA, Va. Code § 55.1-1253(A): The landlord or the tenant may
terminate a week-to-week tenancy by serving a written notice on the other at
least seven days prior to the next rent due date. The landlord or the tenant
may terminate a month-to-month tenancy by serving a written notice on the
other at least 30 days prior to the next rent due date, unless the rental
agreement provides for a different notice period. The landlord and the tenant
may agree in writing to an early termination of a rental agreement….
ii. MHLRA, Va. Code § 55.1-1302(B): Upon the expiration of a rental
agreement, the agreement shall be automatically renewed for a term of one
year with the same terms unless the landlord provides written notice to the
tenant of any change in the terms [or termination] of the agreement at least
60 days prior to the expiration date.
iii. Public and Subsidized Housing, Va. Code § 55.1-1202(D): No notice
of termination of tenancy served upon a tenant by a public housing authority
organized under the Housing Authorities Law (§ 36-1 et seq.) shall be
effective unless it contains on its first page, in type no smaller or less legible
than that otherwise used in the body of the notice, the name, address, and
telephone number of the legal services program, if any, serving the
jurisdiction in which the premises is located.
No notice of termination of tenancy served upon a tenant receiving tenant-
based rental assistance through (i) the Housing Choice Voucher Program, 42
U.S.C. § 1437f(o), or (ii) any other federal, state, or local program by a private
landlord shall be effective unless it contains on its first page, in type no
smaller or less legible than that otherwise used in the body of the notice, the
statewide legal aid telephone number and website address.
Eviction Legal Helpline Volunteer Manual, Vol. 3: Advice Callbacks & Eviction Defense Outline (v. 4.02, 8/17/21)
–8–b. What does the lease say about non-renewal or termination? (Many leases have
provisions about this.)
5. 14-day “Pay or Quit” notice.
a. Written notice of intent to terminate tenancy if tenant doesn’t pay the amount due
within 14 days of receiving the notice and, for landlords of five or more rental units,
offering a payment plan.
i. VRLTA, Va. Code § 55.1-1245(F): For a landlord who owns four or fewer
rental dwelling units, if rent is unpaid when due, and the tenant fails to pay
rent within 14 days after written notice is served on him notifying the tenant
of his nonpayment, and of the landlord's intention to terminate the rental
agreement if the rent is not paid within the 14-day period, the landlord may
terminate the rental agreement and proceed to obtain possession of the
premises as provided in § 55.1-1251.
For a landlord who owns more than four rental dwelling units or more than a
10 percent interest in more than four rental dwelling units, whether
individually or through a business entity, in the Commonwealth, if rent is
unpaid when due, the landlord shall serve upon the tenant a written notice
informing the tenant of the total amount due and owed. The written notice
shall also offer the tenant a payment plan under which the tenant shall be
required to pay the total amount due and owed in equal monthly installments
over a period of the lesser of six months or the time remaining under the
rental agreement. The total amount due and owed under a payment plan shall
not include any late fees, and no late fees shall be assessed during any time
period in which a tenant is making timely payments under a payment plan.
This notice shall also inform the tenant that if the tenant fails to either pay
the total amount due and owed or enter into the payment plan offered, or an
alternative payment arrangement acceptable to the landlord, within 14 days
of receiving the written notice from the landlord, the landlord may terminate
the rental agreement and proceed to obtain possession of the premises as
provided in § 55.1-1251. … The option of entering into a payment plan or
alternative payment arrangement pursuant to this subsection may only be
utilized once during the time period of the rental agreement. Nothing in this
subsection shall preclude a tenant from availing himself of any other rights or
remedies available to him under the law, nor shall the tenant's eligibility to
participate or participation in any rent relief program offered by a nonprofit
organization or under the provisions of any federal, state, or local law,
regulation, or action prohibit the tenant from taking advantage of the
provisions of this subsection.
ii. MHLRA, Va. Code § 55.1-1311, incorporates VRLTA § 55.1-1245(F).
Eviction Legal Helpline Volunteer Manual, Vol. 3: Advice Callbacks & Eviction Defense Outline (v. 4.02, 8/17/21)
–9–b. If the property is covered by the federal CARES Act, passed in March 2020, then the
landlord must give the tenant 30 days’ written notice to vacate, not just 14 days. 15
USC 9058(c)(2)
i. A property (not just an individual rental unit) is covered by the CARES Act if:
1. Any tenant receives federal rent subsidies through the Section 8 or
Housing Choice Voucher program, the Rural Housing Voucher
program, or lives in a Low Income Housing Tax Credit subsidized
unit, or another federally subsidized dwelling; or
2. It has a federally backed mortgage.
c. Public Housing, 24 C.F.R. § 966.4(l)(3): Lease termination notice. (i) The PHA
must give written notice of lease termination: (A) 14 days in the case of failure to
pay rent….
d. Notice must explicitly give tenant the option to pay or vacate.
e. Notice must be for “the precise sum due.” See, Johnston v. Hargrove, 81 Va. 118
(1885); Proutt v. Roby, 82 U.S. 471, 21 L.Ed. 58 (1872).
f. Notice cannot seek amounts not properly due.
i. Unauthorized late fees (not in lease and/or not reasonable)
ii. Court costs not yet incurred
iii. Attorney fees not authorized by lease, not earned, or unreasonable. See,
Mullins v. Richlands National Bank, 241 Va. 447 (1991)
• District Court Judges’ Benchbook (2020), 118: “It is not
uncommon to see five-day notices containing amounts not authorized by
the lease, such as late fees or attorney’s fees. … [T]hose notices are invalid
and should result in the dismissal of the unlawful detainer summons or a
judgment for the defendant.”
Eviction Legal Helpline Volunteer Manual, Vol. 3: Advice Callbacks & Eviction Defense Outline (v. 4.02, 8/17/21)
– 10 –g. The amended state budget enacted on August 10, 2021, imposed additional
requirements on such notices including information about the Virginia Rent Relief
Program (RRP), the landlord’s duty to apply for rent relief on behalf of the tenant
(with some exceptions) and to wait for application approval before taking legal action
against the tenant. (See the latest COVID Defenses Outline, available on
https://evictionhelpline.org/existing-volunteers/, for a more thorough explanation
of requirements.)
6. 21/30 notice for remediable breach.
a. Notice must be based on either the tenant’s material noncompliance with the lease or
a violation of § 55.1-1227 (obligation to maintain dwelling unit) materially affecting
health and safety.
b. Notice must specify the acts or omissions constituting the breach.
i. Federally Subsidized Housing: notice must state reasons “with enough
specificity” that the tenant can prepare a defense.
• 24 C.F.R. § 247.4(a): Requisites of Termination Notice. The landlord’s
determination to terminate the tenancy shall be in writing and shall: (1)
State that the tenancy is terminated on a date specified therein; (2) state
the reasons for the landlord’s action with enough specificity so as to
enable the tenant to prepare a defense
c. Did the tenant adequately remedy the breach by the date (21 days) specified in the
notice?
i. VRLTA, Va. Code § 55.1-1245(A)-(B): A. Except as otherwise provided in
this chapter, if there is a material noncompliance by the tenant with the rental
agreement or a violation of § 55.1-1227 materially affecting health and safety,
the landlord may serve a written notice on the tenant specifying the acts and
omissions constituting the breach and stating that the rental agreement will
terminate upon a date not less than 30 days after receipt of the notice if the
breach is not remedied in 21 days and that the rental agreement shall
terminate as provided in the notice.
B. If the breach is remediable by repairs or the payment of damages or
otherwise and the tenant adequately remedies the breach prior to the date
specified in the notice, the rental agreement shall not terminate.
ii. MHLRA, Va. Code § 55.1-1311, incorporates VRLTA § 55.1-1245(A)-(B).
Eviction Legal Helpline Volunteer Manual, Vol. 3: Advice Callbacks & Eviction Defense Outline (v. 4.02, 8/17/21)
– 11 –7. 30-day notice for non-remediable breach.
a. Notice must specify the acts or omissions constituting the breach.
i. Federally Subsidized Housing: notice must state reasons “with enough
specificity” that the tenant can prepare a defense. 24 C.F.R. § 247.4(a)
b. Is it the tenant’s breach really not remediable?
i. If the breach is remediable, did the tenant previously remedy an earlier
breach “of like nature” after receiving a 21/30 notice in the past? If so, was
the current breach done intentionally?
• VRLTA, Va. Code § 55.1-1245(E): If the tenant has been served with a
prior written notice that required the tenant to remedy a breach, and the
tenant remedied such breach, where the tenant intentionally commits a
subsequent breach of a like nature as the prior breach, the landlord may
serve a written notice on the tenant specifying the acts and omissions
constituting the subsequent breach, make reference to the prior breach of
a like nature, and state that the rental agreement will terminate upon a
date not less than 30 days after receipt of the notice.
• VRLTA, Va. Code § 55.1-1245(C): If the tenant commits a breach that
is not remediable, the landlord may serve a written notice on the tenant
specifying the acts and omissions constituting the breach and stating that
the rental agreement will terminate upon a date not less than 30 days
after receipt of the notice….
• MHLRA, Va. Code § 55.1-1311, incorporates VRLTA § 55.1-1245(C),
(E).
8. Termination notice for non-remediable, criminal or willful breach threatening
health or safety.
a. Is the breach “illegal drug activity involving a controlled substance…or any activity
that involves or constitutes a criminal or willful act that also poses a threat to health
and safety, by the tenant, the tenant’s authorized occupants, or the tenant’s guests or
invitees”?
i. VRLTA, Va. Code §55.1-1245(C): …when a breach of the tenant's
obligations under this chapter or the rental agreement involves or constitutes
a criminal or a willful act that is not remediable and that poses a threat to
health or safety, the landlord may terminate the rental agreement
immediately and proceed to obtain possession of the premises. For purposes
of this subsection, any illegal drug activity involving a controlled substance, as
used or defined by the Drug Control Act (§ 54.1-3400 et seq.), or any activity
that involves or constitutes a criminal or willful act that also poses a threat to
Eviction Legal Helpline Volunteer Manual, Vol. 3: Advice Callbacks & Eviction Defense Outline (v. 4.02, 8/17/21)
– 12 –health and safety, by the tenant, an authorized occupant, or a guest or invitee
of the tenant shall constitute an immediate nonremediable violation for which
the landlord may proceed to terminate the tenancy without the necessity of
waiting for a conviction of any criminal offense that may arise out of the same
actions. In order to obtain an order of possession from a court of competent
jurisdiction terminating the tenancy for illegal drug activity or for any other
activity that involves or constitutes a criminal or willful act that also poses a
threat to health and safety, the landlord shall prove any such violations by a
preponderance of the evidence. However, where the illegal drug activity or
any activity that involves or constitutes a criminal or willful act that also
poses a threat to health and safety is engaged in by an authorized occupant or
a guest or invitee of the tenant, the tenant shall be presumed to have
knowledge of such activities unless the presumption is rebutted by a
preponderance of the evidence….
• For definition of criminal, see, Jernigan v. Commonwealth, 104 Va. 850,
52 S.E. 361, 362 (1905) (an act forbidden by a public statute, punishable
by a proceeding in the name and for the benefit of the State, and, if the
judgment is not satisfied, by confinement in jail). For definition of willful,
see, Wood v. Weaver, 121 Va. 250, 92 S.E. 1001 (1917) (“In short, the act
which constitutes a willful trespass may be anywhere in the domain of the
law which extends from the region of felonies down to gross negligence,
but is never found below the border line of the latter in the region of mere
negligence.); Barnes v. Moore, 199 Va. 227, 98 S.E.2d 683 (1957).
ii. MHLRA, Va. Code § 55.1-1311, incorporates VRLTA § 55.1-1245(C).
b. Notice to tenants of federally subsidized housing must specify the acts or omissions
constituting the breach.
i. Federally Subsidized Housing: notice must state reasons “with enough
specificity” that the tenant can prepare a defense. 24 C.F.R. § 247.4(a)
9. Notice of termination because unit recently became uninhabitable due to fire,
flooding, other accident.
a. Either the landlord or the tenant may terminate the lease if needed, following
statutory requirements.
i. Landlord must give tenant a 14-day notice of lease termination “based upon
the landlord’s determination that such damage requires the removal of the
tenant and the use of the premises is substantially impaired.”
• VRLTA, Va. Code § 55.1-1240: If the dwelling unit or premises is
damaged or destroyed by fire or casualty to an extent that the tenant's
enjoyment of the dwelling unit is substantially impaired or required
repairs can only be accomplished if the tenant vacates the dwelling unit,
Eviction Legal Helpline Volunteer Manual, Vol. 3: Advice Callbacks & Eviction Defense Outline (v. 4.02, 8/17/21)
– 13 –either the tenant or the landlord may terminate the rental agreement. The
tenant may terminate the rental agreement by vacating the premises and
within 14 days thereafter, serving on the landlord a written notice of his
intention to terminate the rental agreement, in which case the rental
agreement terminates as of the date of vacating. If continued occupancy is
lawful, § 55.1-1411 shall apply.
The landlord may terminate the rental agreement by giving the tenant
14 days' notice of his intention to terminate the rental agreement on the
basis of the landlord's determination that such damage requires the
removal of the tenant and that the use of the premises is substantially
impaired, in which case the rental agreement terminates as of the
expiration of the notice period.
If the rental agreement is terminated, the landlord shall return all
security deposits in accordance with § 55.1-1226 and prepaid rent, plus
accrued interest, recoverable by law unless the landlord reasonably
believes that the tenant, an authorized occupant, or a guest or invitee of
the tenant was the cause of the damage or casualty, in which case the
landlord shall provide a written statement to the tenant for the security
and prepaid rent, plus accrued interest based upon the damage or
casualty, and may recover actual damages sustained pursuant to § 55.1-
1251. Proration for rent in the event of termination or apportionment
shall be made as of the date of the casualty.
• MHLRA, Va. Code § 55.1-1311, incorporates VRLTA § 55.1-1240.
10. Notice of termination to former owner living in foreclosed property.
a. A former homeowner living in a property that is sold at foreclosure becomes a tenant
at sufferance until the new owner terminates their tenancy.
b. The new owner of must give the former owner (now tenant at sufferance) a 3-day
written notice terminating the tenancy.
c. After the expiration of the three days, the new owner can file an Unlawful Detainer to
get possession of the home.
i. Va. Code § 8.01-126(D)(4): If, on the date of a foreclosure sale of a single-
family residential dwelling unit, the former owner remains in possession of
such dwelling unit, such former owner becomes a tenant at sufferance. Such
tenancy may be terminated by a written termination notice from the
successor owner given to such tenant at least three days prior to the effective
date of termination. Upon the expiration of the three-day period, the
successor owner may file an unlawful detainer under this section. Such tenant
shall be responsible for payment of fair market rental from the date of such
foreclosure until the date the tenant vacates the dwelling unit, as well as
damages, and for payment of reasonable attorney fees and court costs.
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– 14 –11. Notice of termination to tenant in foreclosed property.
a. New owners acquiring property through foreclosure must honor existing lease.
b. Landlord cannot terminate the lease of a tenant with more than 90 days left on the
lease term, with one exception.
i. A new owner, who bought at foreclosure and who seeks to occupy the unit as
a primary residence, may terminate such a lease with at least 90 days’ notice.
c. For leases with less than 90 days remaining in the term, month-to-month leases, and
leases terminable at will, the landlord (successor in interest) has to give proper notice
at least 90 days before termination of tenancy.
i. Protecting Tenants at Foreclosure Act. Public Law #111-22, §§701-703
(5/20/09), permanently restored by §304 of the Economic Growth,
Regulatory Relief, and Consumer Protection Act of 2018 (Public Law #115-
174) which restored sections 701-703, and repealed section 704, of the
Protecting Tenants at Foreclosure Act of 2009.
“In General – In the case of any foreclosure on a federally-related mortgage
loan or on any dwelling or residential real property after the date of
enactment of this title, any immediate successor in interest in such property
pursuant to the foreclosure shall assume such interest subject to –
(1) the provision, by such successor in interest of a notice to vacate to any
bona fide tenant at least 90 days before the effective date of such notice; and
(2) the rights of any bona fide tenant, as of the date of such notice of
foreclosure –
(A) under any bona fide lease entered into before the notice of foreclosure to
occupy the premises until the end of the remaining term of the lease, except
that a successor in interest may terminate a lease effective on the date of sale
of the unit to a purchaser who will occupy the unit as a primary residence,
subject to the receipt by the tenant of the 90 day notice under paragraph (1);
or
(B) without a lease or with a lease terminable at will under State law, subject
to the receipt by the tenant of the 90 day notice under subsection (1),
except that nothing under this section shall affect the requirements for
termination of any Federal- or State-subsidized tenancy or of any State or
local law that provides longer time periods or other additional protections for
tenants.”
Eviction Legal Helpline Volunteer Manual, Vol. 3: Advice Callbacks & Eviction Defense Outline (v. 4.02, 8/17/21)
– 15 –12. Notice of termination due to rehabilitation or conversion of a building
containing 4 or more dwelling units.
a. For a lease with a term longer than month-to-month, landlord must serve a proper
notice at least 120 days before termination.
i. VRLTA, Va. Code § 55.1-1410(B): In addition to the termination rights
set forth in subsection A, and notwithstanding the terms of the lease, the
landlord may terminate a lease agreement in a multifamily residential
building due to rehabilitation or a change in the use of all or any part of such
building that contains at least four residential units, upon 120 days' prior
written notice to the tenant. Changes in use shall include conversion to hotel,
motel, apartment hotel, or other commercial use, planned unit development,
substantial rehabilitation, demolition, or sale to a contract purchaser
requiring an empty building. This 120-day notice requirement shall not be
waived except in the case of a month-to-month tenancy, which may be
terminated by the landlord by giving the tenant 30 days' written notice prior
to the next rent due date of the landlord's intention to terminate the tenancy.
b. Does the lease or other contract purport to illegally waive the 120-day notice
requirement?
i. VRLTA, Va. Code § 55.1-1208(A)(2): [A rental agreement shall not
contain provisions that the tenant:] Agrees to waive or forgo rights or
remedies pertaining to the 120-day conversion or rehabilitation notice
required in the Virginia Condominium Act (§ 55.1-1900 et seq.) or the
Virginia Real Estate Cooperative Act (§ 55.1-2100 et seq.) or under § 55.1-
1410….
13. Notice of termination due to rehabilitation or change in the use of all or part of
a manufactured home park.
a. Landlord must serve a proper notice at least 180 days before termination.
i. MHLRA, Va. Code § 55.1-1308(B): If the termination is due to
rehabilitation or a change in the use of all or any part of a manufactured
home park by the landlord, a 180-day written notice is required to terminate
a rental agreement. As used in this subsection, "change" includes conversion
to hotel, motel, or other commercial use; planned unit development;
rehabilitation; demolition; or sale to a contract purchaser. This 180-day
notice requirement shall not be waived; however, a period of less than 180
days may be agreed upon by both the landlord and tenant in a written
agreement separate from the rental agreement executed after such notice is
given and applicable only to the 180-day notice period.
Eviction Legal Helpline Volunteer Manual, Vol. 3: Advice Callbacks & Eviction Defense Outline (v. 4.02, 8/17/21)
– 16 –b. Does the lease or other contract purport to waive the 180-day notice requirement?
i. Was the contract waiving the requirement executed after a 180-day notice
was given, as required?
ii. Was the waiver truly informed and voluntary by tenant?
iii. Was the waiver separate from the lease, as required?
14. Notice of subsidy termination from housing authority.
a. Before terminating a tenant’s Section 8 rent subsidy, the Public Housing Authority
must give the tenant family “prompt written notice,” to include the following (24
C.F.R. § 982.555):
i. A brief statement of reasons for the decision.
• Must have sufficient detail to provide adequate notice to the family of the
facts leading to termination. Conclusory notice that the family violated a
specific regulatory provision is inadequate, and not cured by the tenant’s
actual notice.
• PHA may not introduce additional grounds for termination, not included
in the notice, at the informal hearing.
ii. Statement that if the family does not agree with the decision, the family may
request an informal hearing on the decision.
iii. The deadline for the family to request an informal hearing.
UNLAWFUL DETAINER FILED
15. Upcoming Unlawful Detainer return date.
a. The client should always be encouraged to appear at the return date.
b. If the client has a potential defense, it is generally a good idea for them to ask for a
trial with pleadings.
c. For any lease entered into or renewed since 7/1/20, the landlord must have given the
tenant a copy of the Virginia Statement of Tenant Rights and Responsibilities
provided by the Virginia Department of Housing and Community Development.
ii. VRLTA, Va. Code § 55.1-1204(B), (H): B. A landlord shall offer a
prospective tenant a written rental agreement containing the terms
governing the rental of the dwelling unit and setting forth the terms and
conditions of the landlord-tenant relationship and shall provide with it
the statement of tenant rights and responsibilities developed by the
Eviction Legal Helpline Volunteer Manual, Vol. 3: Advice Callbacks & Eviction Defense Outline (v. 4.02, 8/17/21)
– 17 –Department of Housing and Community Development and posted on its
website pursuant to § 36-139. The parties to a written rental agreement
shall sign the form developed by the Department of Housing and
Community Development and posted on its website pursuant to § 36-139
acknowledging that the tenant has received from the landlord the
statement of tenant rights and responsibilities. The written rental
agreement shall be effective upon the date signed by the parties. …
H. The landlord shall provide a copy of any written rental agreement and
the statement of tenant rights and responsibilities to the tenant within
one month of the effective date of the written rental agreement. The
failure of the landlord to deliver such a rental agreement and statement
shall not affect the validity of the agreement. However, the landlord shall
not file or maintain an action against the tenant in a court of law for any
alleged lease violation until he has provided the tenant with the statement
of tenant rights and responsibilities.
d. Landlord must have served and tenant received a proper (not defective) Notice of
Termination, as described above.
i. But presumption of receipt if properly addressed and mailed. (See above.)
e. Landlord must have filed the Unlawful Detainer only after the expiration of the
notice period.
i. The right to possession must be present when the action is filed and does not
accrue until the expiration of the notice period. See, Merryman v. Hoover,
107 Va. 485, 59 S.E. 483 (1907).
f. Challenging the plaintiff’s standing to sue.
i. Complaint cannot be amended to substitute proper plaintiff if it was filed in
the name of an improper one.
ii. The UD must be filed in the name of a plaintiff who is entitled to possession
of the premises. (Va. Code § 55.1-1406 makes this explicit for nonresidential
leases only.)
• Corporate or LLC name must be correct.
• Must be in the name of the owner or landlord, not an agent
• May not be filed by layperson in the name of another individual as
landlord (unauthorized practice of law)
• Suit may not be brought by agent who is not a broker but is leasing a
property owned by someone else in violation of brokerage statute.
• Partnerships must observe the formalities of filing suit.
Eviction Legal Helpline Volunteer Manual, Vol. 3: Advice Callbacks & Eviction Defense Outline (v. 4.02, 8/17/21)
– 18 –• A plaintiff with standing only as a fiduciary (administrator or executor)
may not sue in their individual capacity.
iii. UD filed by a plaintiff using an assumed name, that name must be properly
filed with the Circuit Court or SCC.
g. Right of Redemption: Can the tenant pay off all that is owed (not just rent) by the
return date?
i. Tenants can redeem the tenancy by paying all rent and arrears due and owing
as of the return date; late fees, other charges and reasonable attorney’s fees
authorized by the lease; and court costs.
VRLTA, Va. Code § 55.1-1250(C), (E): In cases of unlawful detainer,
a tenant, or any third party on behalf of a tenant, may pay the landlord or
the landlord's attorney or pay into court all (i) rent due and owing as of
the court date as contracted for in the rental agreement, (ii) other charges
and fees as contracted for in the rental agreement, (iii) late charges
contracted for in the rental agreement and as provided by law, (iv)
reasonable attorney fees as contracted for in the rental agreement and as
provided by law, and (v) costs of the proceeding as provided by law, at
which time the unlawful detainer proceeding shall be dismissed, unless
there are bases for the entry of an order of possession other than
nonpayment of rent stated in the unlawful detainer action filed by the
landlord.
E. Upon receiving a written request from the tenant, the landlord, or the
landlord's attorney or managing agent, shall provide to the tenant a
written statement of all amounts owed by the tenant to the landlord so
that the tenant may pay the exact amount necessary for the tenant to
exercise his right of redemption pursuant to this section. Any payments
made by the tenant shall be by cashier's check, certified check, or money
order. A court shall not issue a writ of eviction on any judgment for
possession that has expired or has been marked as satisfied.
ii. Landlords with fewer than five rental units may limit a tenant’s right to
redeem to once per lease period.
1. VRLTA, Va. Code § 55.1-1250(A): …a landlord with four or fewer
rental dwelling units, or up to a 10 percent interest in four or fewer
rental dwelling units, may limit a tenant's use of the right of
redemption to once per lease period, provided that the landlord
provides written notice of such limitation to the tenant.
h. Redemption Tender: Can the tenant present at the return date a written commitment
from a local government or nonprofit to pay all that is owed (not just rent) within 10
days?
i. A local government or nonprofit provides a written commitment to pay,
within 10 days of the return date, all rent and arrears due and owing as of the
Eviction Legal Helpline Volunteer Manual, Vol. 3: Advice Callbacks & Eviction Defense Outline (v. 4.02, 8/17/21)
– 19 –court date, late fees, other charges and reasonable attorney’s fees in the lease,
and court costs, the tenant can redeem.
ii. The court grants a continuance for 10 days.
iii. Upon complete payment to the landlord, the court dismissed the action.
iv. If the landlord doesn’t receive complete payment by the deadline, the court
grants a judgment for all money due and immediate possession to the
landlord.
• VRLTA, Va. Code § 55.1-1250(B): The tenant may pay or present to
the court a redemption tender for payment of all rent due and owing as of
the return date, including late charges, attorney fees, and court costs, at or
before the first return date on an action for unlawful detainer.
If the tenant presents a redemption tender to the court at the return date,
the court shall continue the action for unlawful detainer for 10 days
following the return date for payment to the landlord of all rent due and
owing as of the return date, including late charges, attorney fees, and
court costs, and dismiss the action upon such payment. Should the
landlord not receive full payment of all rent due and owing as of the
return date, including late charges, attorney fees, and court costs, within
10 days of the return date, the court shall, without further evidence, grant
to the landlord judgment for all amounts due and immediate possession
of the premises. For purposes of this section, "redemption tender" means
a written commitment to pay all rent due and owing as of the return date,
including late charges, attorney fees, and court costs, by a local
government or nonprofit entity within 10 days of such return date..
i. If the basis of the claim is unpaid rent, did the tenant pay the landlord all sums due
prior to the landlord filing the Unlawful Detainer?
i. The right to possession must be present when the action is filed. See,
Merryman v. Hoover, 107 Va. 485, 59 S.E. 483 (1907).
j. Landlord cannot refuse tender of rent or other payment.
i. See, Young v. Ellis, 91 Va. 297, 21 S.E. 480 (1895); Boggs v. Duncan, 202 Va.
877, 121 S.E.2d 359 (1961); Whitt v. Godwin, 205 Va. 797, 139 S.E.2d 841
(1965).
k. Tenant has properly withheld rent from landlord under the “Repair and Deduct”
remedy of the VRLTA.
i. VRLTA, Va. Code § 55.1-1244.1(B)-(C): B. If (i) there exists in the
dwelling unit a condition that constitutes a material noncompliance by the
landlord with the rental agreement or with provisions of law or that, if not
promptly corrected, will constitute a fire hazard or serious threat to the life,
health, or safety of occupants of the premises, including an infestation of
rodents or a lack of heat, hot or cold running water, light, electricity, or
Eviction Legal Helpline Volunteer Manual, Vol. 3: Advice Callbacks & Eviction Defense Outline (v. 4.02, 8/17/21)
– 20 –adequate sewage disposal facilities, and (ii) the tenant has notified the
landlord of the condition in writing, the landlord shall take reasonable steps
to make the repair or to remedy such condition within 14 days of receiving
notice from the tenant.
C. If the landlord does not take reasonable steps to repair or remedy the
offending condition within 14 days of receiving a tenant's notice pursuant to
subsection B … [a] tenant who contracts with a third-party licensed
contractor or pesticide business is entitled to recover the actual costs incurred
for the work performed, not exceeding the greater of one month's rent or
$1,500. Unless the tenant has been reimbursed by the landlord, the tenant
may deduct the actual costs incurred for the work performed pursuant to the
contract with the third-party contractor or pesticide business after submitting
to the landlord an itemized statement accompanied by receipts for purchased
items and third-party contractor or pest control services.
ii. MHLRA, Va. Code § 55.1-1311, incorporates VRLTA § 55.1-1244.1.
l. Tenant has properly withheld rent from landlord due to poor housing conditions and
paid rent in escrow with the court. (Similar to Tenant’s Assertion, but defensive.)
i. Tenant must still be in possession of the property.
ii. Existence of fire hazard, serious threat to life, health, or safety of occupants;
no heat, running water, light, electricity or adequate plumbing; rodent
infestation; or condition that’s a material noncompliance by landlord with
lease or law.
• Conditions still exist.
• Conditions were not caused by tenant or their family or guests.
• Tenant has not unreasonably refused the landlord entry so they could
correct the conditions.
iii. Before the UD was filed, tenant served landlord written notice or landlord
received a violation or condemnation notice from state or local government
but landlord has unreasonably failed to remedy.
• District Court Judges’ Benchbook (2020), p. 127, indicates that “in most
cases,” 30 days is the time reasonably allowed for the landlord to remedy
the conditions.
iv. Tenant has paid into court the amount of rent found by the court to be due
and unpaid.
v. The Court can order various remedies based on this defense, including rent
abatement in part or in whole, termination of the lease or return of
Eviction Legal Helpline Volunteer Manual, Vol. 3: Advice Callbacks & Eviction Defense Outline (v. 4.02, 8/17/21)
– 21 –possession to the landlord, or referral to a government agency for
investigation.
• VRLTA, Va. Code § 55.1-1241
• MHLRA, Va. Code § 55.1-1311, incorporates VRLTA § 55.1-1241
16. Unlawful Detainer contested and set for trial on the merits.
a. Landlord and tenant entered into a new lease resulting in a new tenancy after the
previous tenancy was breached.
b. Tenant’s breach is not material noncompliance with building and housing codes
materially affecting health or safety, as claimed by landlord.
i. VRLTA, § 55.1-1227(A)(1): A. In addition to the provisions of the rental
agreement, the tenant shall:
1. Comply with all obligations primarily imposed upon tenants by applicable
provisions of building and housing codes materially affecting health and
safety….
c. Landlord cannot terminate, due solely to an act of family abuse against a tenant, the
lease of a victim of family abuse that occurred in the dwelling unit or on the
premises, but with many limitations. VRLTA, § 55.1-1245(D); MHLRA, Va.
Code § 55.1-1311
i. “Family abuse” and “family or household member” are defined in Va. Code §
16.1-228.
ii. The abuser is barred from the dwelling unit by landlord based upon
information provided by the tenant to the landlord; or barred by a court-
issued protective order pursuant to § 16.1-253.1, 16.1-279.1, or subsection B of
§ 20-103.
iii. Tenant must provide landlord, within 21 days of alleged offense, written
evidence of her (or his) status as a victim of family abuse and of abuser’s ban
from returning to the dwelling.
iv. If the abuser returns to the dwelling unit in violation of the ban or protective
order, the tenant must notify landlord within 24 hours.
d. Eviction cannot be brought in unlawful retaliation for tenant’s exercise of certain
protected rights. VRLTA, Va. Code § 55.1-1258; MHLRA, Va. Code § 55.1-
1314
i. Termination of the lease without cause after landlord has knowledge that…
Eviction Legal Helpline Volunteer Manual, Vol. 3: Advice Callbacks & Eviction Defense Outline (v. 4.02, 8/17/21)
– 22 –• The tenant has complained to a governmental agency charged with
responsibility for enforcement of a building or housing code of a violation
applicable to the premises materially affecting health or safety.
• The tenant has made a complaint to or filed a suit against the landlord for
a violation of any provision of the VRLTA.
• The tenant has organized or become a member of a tenants’ organization.
• The tenant has testified in a court proceeding against the landlord.
ii. But, the landlord may still evict for the following:
• Violation of the applicable building or housing code was caused primarily
by lack of reasonable care by the tenant or a member of his household or a
person on the premises with his consent;
• The tenant is in default in rent;
• Compliance with the applicable building or housing code requires
alteration, remodeling or demolition that would effectively deprive the
tenant of use of the dwelling unit; or
• The tenant is in default of a provision of the rental agreement materially
affecting the health and safety of himself or others. …
e. Landlord accepted rent after alleged lease violation or receipt of a judgment for
possession without ever giving tenant proper written notice of acceptance of rent
with reservation.
• Notice of reservation must include the following language: "Any partial
payment of rent made before or after a judgment of possession is ordered
will not prevent your landlord from taking action to evict you. However,
full payment of all amounts you owe the landlord, including all rent as
contracted for in the rental agreement that is owed to the landlord as of
the date payment is made, as well as any damages, money judgment,
award of attorney fees, and court costs made at least 48 hours before the
scheduled eviction will cause the eviction to be canceled, unless there are
bases for the entry of an order of possession other than nonpayment of
rent stated in the unlawful detainer action filed by the landlord."
i. Rent accepted without reservation renews the tenancy and prevents the
landlord from either getting a judgment of possession or having a Writ of
Possession executed on a previous judgment of possession.
• VRLTA, Va. Code § 55.1-1250(A): A. No landlord may accept full
payment of rent, as well as any damages, money judgment, award of
attorney fees, and court costs, and receive an order of possession from a
court of competent jurisdiction pursuant to an unlawful detainer action …
Eviction Legal Helpline Volunteer Manual, Vol. 3: Advice Callbacks & Eviction Defense Outline (v. 4.02, 8/17/21)
– 23 –You can also read
