Tips for Filing a Tenant’s Assertion in Virginia

The rights and responsibilities of landlords and tenants in Virginia flow from the terms of their lease agreement and Virginia’s complicated system of statutes and regulations, which further define the relationship. Regardless of whether a lease is governed by the Virginia Residential Landlord Tenant Act (“VRLTA”) or the common law, tenants can potentially avail themselves of a process called a tenant’s assertion if they believe the Landlord has materially breached the lease or allowed a safety concern to persist on the premises. To understand some key differences between the two, read on as our Fairfax real estate attorneys explain.

When to File a Tenant’s Assertion

1. Va. Code Ann. § 55-248.27 provides the specifics regarding tenant’s assertions under VRLTA leases and Va. Code Ann. § 55-225.12 controls with respect to non-VRLTA leases.
2. Both statutes allow a tenant to assert the existence of a condition that constitutes material non-compliance with the terms of the lease, a fire hazard, or a serious threat to the life, health, or safety of the tenant and to seek redress from the court.
3. The court will ultimately determine whether the condition asserted constitutes a material breach of the lease or safety concern. But illustrative examples include lack of heat, hot/cold running water, light, electricity or adequate sewage disposal, a rodent infestation or lead paint within the premises. Issues with utility service cannot be the result of the tenant’s failure to pay a bill for which they are responsible.

How to File a Tenant’s Assertion

1. Before filing a Tenant’s Assertion, the tenant must provide the Landlord with written notice of the material breach or dangerous condition existing on the property pursuant to the Lease. We recommend using certified mail.
2. Give the Landlord a reasonable amount of time to remedy the breach or dangerous condition after they receive notice of such. Generally, a Landlord is entitled to at least 30 days to remedy the breach or condition, unless it’s an essential service, like water or electricity, in which case, the tenant should resolve the issue as soon as possible.
3. File a Tenant’s Assertion and Complaint Form in the General District Court where the leased property is located.
4. The court clerk will accept your completed Tenant’s Assertion and Complaint and establish an escrow account for your rent to be paid into when due. To be eligible for relief pursuant to a tenant’s assertion, a tenant must be current on their rent at the time of filing and continue to pay rent to the court (as opposed to the Landlord). Failure to satisfy the condition requiring a tenant to remain current with rent payments will result in dismissal of the action.

Next Steps

1. The court will set a hearing (“Return Date”) for you and the landlord to appear at court and argue your case, present evidence, listen to witnesses and take account of damages/expenses incurred. This hearing should occur within 15 days of the filing of the tenant’s assertion unless emergency conditions warrant an earlier date.
2. If either party fails to appear then a Default Judgment may be entered against the party not in attendance. If neither party appears, the Court will typically dismiss the case without prejudice.
3. Depending on the specific circumstances, various forms of relief can be awarded, including a termination of the lease, rent abatement, disbursement of all money in escrow to the tenant, attorneys’ fees, costs, and other damages. A tenant’s assertion can be a powerful tool for tenants seeking to compel a landlord to comply with the terms of a lease. On the other hand, the consequences for landlords who fail to respond appropriately to a notice of non-compliance can be severe.

Contact our Fairfax landlord and tenant lawyersat Keithley Law, PLLC, PLLC at (703) 454-5147 for your Real Estate Law needs.