September 12, 2019
By: Gwynne L. Booth
2019 ushers in a wave of changes to existing Virginia landlord-tenant law. The majority of these statutory amendments became effective July 1, 2019. However, a further and complete overhaul of Virginia Code’s Title 55 on Property and Conveyances is set to take place on October 1, 2019, at which time every statutory citation will bear a new number under Title 55.1. As such, any landlord form notice which references statutory citations will need to be revised to implement the new statutory numbering system effective October 1, 2019. Below is a summary of critical updates of which landlords should be mindful.
Summons for Unlawful Detainer
Va. Code § 8.01-126 (This statutory citation will remain the same after October 1, 2019)
The statutory section dealing with summonses for unlawful detainer has been updated in several respects. First, while the law had previously only required that the initial return date be set within 21 days of the date of filing, or as soon as practicable thereafter; the Code now requires that the initial hearing be set not more than 30 days after the date of filing. This serves to expedite the process in favor of landlords in certain jurisdictions which previously experienced backlogs and delayed hearing dates. Second, the Code now specifically states that no order of possession shall be entered unless the landlord submits into evidence a copy of the termination notice (e.g., 5 Day Notice to Pay or Quit, 21/30 Notice to Correct or Vacate). By practice, most jurisdictions already required this, but the Code now standardizes the practice across the Commonwealth. Lastly, the Code allows landlords to amend the amount alleged to be due and owing as of the date of the initial hearing and further amend the amount sought prior to final disposition of the action. The Code now makes clear that should a landlord fail to request such amendments, the landlord cannot later file a subsequent summons for unlawful detainer for those amounts which could have been included in such an amendment. Should a landlord attempt the same, the court will dismiss the later action.
Writs of Evictions (Previously referred to as Writs of Possession)
Va. Code §§ 8.01-470, 471 (These statutory citations will remain the same after October 1, 2019)
An order of possession is now only valid for 180 days from the date granted by the court, rather than the former one year period. A writ of eviction, previously known as a writ of possession, may only issue within that 180-day period. The new timing requirements for the execution of the writ of eviction are as follows: The execution by the sheriff should occur within 15 days from the date the writ of eviction is received by the sheriff, or as soon as practicable thereafter, but in no event later than 30 days from the date the writ is issued. Should the sheriff fail to execute upon the writ of eviction within 30 days from the date of issuance, then the writ will be vacated as a matter of law. Further, the Code now prohibits the issuance of any writ of eviction where the landlord and tenant have subsequently entered into a new lease agreement following entry of the original order for possession.
Va. Code §§ 16.1-107 (This statutory citation will remain the same after October 1, 2019)
The Code now requires a tenant appeal bond to include the following: “the amount of outstanding rent, late charges, attorney[’s] fees, and any other charges or damages due, as contracted for in the rental agreement, and as amended on the unlawful detainer by the court.” Further, during the pendency of the appeal, the Code also now requires the tenant to make his/her monthly rent payment directly to the landlord on or before the 5th day of each month. Should the tenant miss any rental payment after the appeal bond is posted, the landlord may alert the court to the same upon written motion and the judge of the circuit court shall enter: (i) judgment for the amount of outstanding rent, late charges, attorney’s fees, and any other charges or damages due as of that date; and (ii) an order of possession; all of this occurring without further hearings or proceedings in such court.
Leases Longer than Five Years
Currently, Va. Code § 55-2.; as of October 1, 2019, Va. Code § 55.1-101
Previously, a lease exceeding a term of 5 years had to be in the form of a deed and could be held invalid, unenforceable, or subject to repudiation by the parties if not in this form. The law now makes clear this is no longer required. The term “deed of lease” has been removed from the Code and replaced merely with the term “lease.” Further, the Code provides that any lease which was entered into before, and which remains in effect as of February 13, 2019, cannot be invalidated simply for its failure to be in the form of a deed.
Currently, Va. Code § 55-218.1.; as of October 1, 2019, Va. Code § 55.1-1211
While this section previously applied to both entities and individuals, the Code now limits the applicability of this section to non-resident individuals. Any nonresident individual, or group of individuals, who owns and leases either: (i) residential real property consisting of four or more rental units; or (ii) commercial real property within a county or city in the Commonwealth shall appoint and continuously maintain a resident agent. If the appointed resident agent is an individual, then the resident agent must be a resident of the Commonwealth. If the appointed resident agent is an entity, then the entity must both: (a) be authorized to transact business in the Commonwealth; and (b) maintain a business office within the Commonwealth.
Currently, Va. Code § 55-248.7:2; as of October 1, 2019, Va. Code § 55.1-1206
The Code allows landlords to require tenants to obtain renter’s insurance. However, the Code now provides that should a landlord not require a tenant to obtain renter’s insurance then the landlord must provide written notice to the tenant prior to the execution of the rental agreement that:
- The landlord is not responsible for the tenant’s personal property;
- The landlord’s insurance coverage does not cover the tenant’s personal property;
- If the tenant wishes to protect his personal property, he should obtain renter’s insurance; and
- Any renter’s insurance obtained by the tenant does not cover flood damage and the tenant should contact the Federal Emergency Management Agency (FEMA) or visit the websites for FEMA’s National Flood Insurance Program or for the Virginia Department of Conservation and Recreation’s Flood Risk Information System to obtain information regarding whether the property is located in a special flood hazard area.
Further, the Code additionally now requires that should a landlord choose to obtain renter’s insurance on behalf of its tenants, the landlord is now required to “provide to each tenant, prior to execution of the rental agreement, a summary of the insurance policy prepared by the insurer or certificate evidencing the coverage being provided and upon request of the tenant make available a copy of the insurance policy. Such summary or certificate shall include a statement regarding whether the insurance policy contains a waiver of subrogation provision.”
Signatures on Pleadings by Landlord’s Property Manager or Managing Agent
Currently, Va. Code § 55-248.4; as of October 1, 2019, Va. Code § 55.1-1200; see also Va. Code § 16.1-88.03 (This statutory citation will remain the same after October 1, 2019)
While it has long been common practice for a property manager, or managing agent, to sign legal pleadings on behalf of a corporate/legal entity landlord, the Code now requires that a written property management agreement exist in order for these individuals to have the legal authority to sign and act as an agent on behalf of the landlord.
Effect of No Written Lease
Currently, Va. Code § 55-248.7; as of October 1, 2019, Va. Code § 55.1-1204
Previously, if a landlord and a tenant did not enter into a written lease agreement, the tenant was merely required to pay rent equal to the fair market rent for the property. Now, the Code requires that the landlord offer the tenant a written lease and if accepted the terms therein will control. If there still remains a situation where there is no written lease between the landlord and the tenant then the Code now provides that a rental tenancy shall be deemed to exist by operation of law under the following terms: (i) the Virginia Residential Landlord & Tenant Act will be applicable to the rented unit, (ii) the duration of the term will be 12 months and shall not be subject to automatic renewal except in the event of a month-to-month lease, (iii) rent shall be paid in 12 equal monthly installments, if no agreement has been made as to the monthly rental amount then the amount shall be the fair market rental value, (iv) rent shall be due on the 1st day of each month and shall be considered late if not paid by the 5th day of the month, (v) if rent is not paid by the 5th day of the month then the landlord shall be entitled to a late charge, (vi) the landlord may collect a security deposit not to exceed an amount equal to 2 months of rent, and (vii) the parties may enter into a written rental agreement at any time during this 12 month tenancy.
Landlord’s Noncompliance as: (i) a Defense to an Action for Possession; or (ii) as the Basis for a Tenant Assertion
Currently, Va. Code §§ 55-248.25 and 248.27; as of October 1, 2019, Va. Code §§ 55.1-1241 and 1244
For the first time, the Code now allows for the entry of reasonable costs and attorneys’ fees against a landlord should a tenant: (i) be successful in his/her defense of an action for possession based on landlord’s noncompliance; or (ii) the court deems that a tenant is entitled to relief under the tenant assertion process. To be successful in either of these instances, the tenant must prove that there exists upon the leased premises, a condition which constitutes or will constitute, a fire hazard or a serious threat to the life, health, or safety of the occupants thereof.
Tenant’s Right of Redemption
Currently, Va. Code § 55-248.34.1(D); as of October 1, 2019, Va. Code § 55.1-1250(D)
Previously, a tenant could redeem his or her tenancy by paying all amounts due prior to the initial return hearing. Redemption prior to the initial return date included payment of all rent, contractual charges and fees, late fees, reasonable attorney’s fees, and court costs. The Code now extends the tenant’s right of redemption up to two business days before the scheduled date of eviction. Redemption prior to a scheduled eviction includes payment of the same amounts to redeem prior to the initial return hearing, plus any damages, civil recovery, and sheriff fees. Payments made prior to a scheduled eviction are required to be made by cashier’s check, certified check, or money order.
Prospective Tenant Applications
As of October 1, 2019, Va. Code § 55.1-1203
Many landlords have struggled with the lack of clarity from the Code as to what landlords are allowed to request from a prospective tenant applicant. Effective October 1, 2019, the Code will specifically allow for the following:
A landlord may request that a prospective tenant provide information that will enable the landlord to determine whether each applicant may become a tenant. The landlord may photocopy each applicant’s driver’s license or other similar photo identification, containing either the applicant’s social security number or control number issued by the Department of Motor Vehicles. However, a landlord shall not photocopy a U.S. government-issued identification so long as to do so is a violation of 18 U.S.C. § 701. The landlord may require, for the purpose of determining whether each applicant is eligible to become a tenant in the landlord’s dwelling unit, that each applicant provide a social security number issued by the U.S. Social Security Administration or an individual taxpayer identification number issued by the U.S. Internal Revenue Service.
The Code further now prohibits an application fee in excess of $50, exclusive of any actual out-of-pocket expenses paid by the landlord to a third party performing background, credit, or other pre-occupancy checks on the applicant. Further, this statutory cap is lowered to $32, exclusive of any actual out-of-pocket expenses paid to a third party by the landlord performing background, credit, or other pre-occupancy checks on the applicant, if the application is being made for a dwelling unit that is a public housing unit or other housing unit subject to regulation by the U.S. Department of Housing and Urban Development.
Va. Code §§ 58.1-439.12:04 (This statutory citation will remain the same after October 1, 2019)
For taxable years beginning on or after January 1, 2020, a participating landlord renting a qualified housing unit shall be eligible for a tax credit in amount equal to 10% of the fair market value of the rent for the unit, computed for that portion of the taxable year in which the unit was rented by such landlord to a tenant participating in a housing choice voucher program. Previously, this Code section only applied to landlords in the Richmond Metropolitan Statistical Area in which less than 10% of the residents live below the poverty level. The Code amendment extends application of the tax credit to the Virginia Beach-Norfolk-Newport News Metropolitan Statistical Area in which less than 10% of the residents live below the poverty level.
Please note, while this tax credit is currently only applicable to landlords located in the Richmond Metropolitan Statistical Area and the Virginia Beach-Norfolk-Newport News Metropolitan Statistical Area, Landlords should watch for further amendment to this Code section as it is likely that the legislature will continue to extend this tax credit throughout the Commonwealth as need dictates.
Eviction Diversion Pilot Program (Currently only applicable to the Cities of Danville, Hampton, Petersburg, and Richmond)
As of October 1, 2020 and set to expire on July 1, 2023, Va. Code § 55.1-1260-1262
While the Eviction Diversion Pilot Program (the “Program”) is not yet applicable to any jurisdiction in Northern Virginia, it serves as a suggestion that these provisions may later be instituted Commonwealth-wide if successful in the pilot jurisdictions.
Beginning on October 1, 2020, the cities of Danville, Hampton, Petersburg, and Richmond will begin implementation of the Program. Without further legislative action, the Program will expire as a matter of law on July 1, 2023. The Program will consist of specialized dockets within the existing structure of those cities’ unlawful detainer dockets. The Commonwealth has listed the aspirational goals of the Program as: (i) reducing the number of evictions of low-income persons, especially when such persons have experienced an event that adversely affected financial circumstances such as the loss of employment or a medical crisis in their immediate family; (ii) reducing displacement of families and the resulting adverse consequences to children who are no longer able to remain in the same public school after eviction; (iii) encouraging understanding of eviction-related processes and facilitating reasonable payment plans between landlords and tenants; and (iv) encouraging tenants to make rental payments in the manner as provided in the rental agreement.
In order to be eligible to participate in the Program, the tenant must: (i) appear at the initial return hearing and request to have the case referred into the Program; (ii) pay at least 25% percent of the amount due on the unlawful detainer as amended on the date of the initial return; (iii) provide sworn testimony that he/she is employed and has sufficient funds to make the payments under the court payment plan or otherwise has sufficient funds to make such payments; (iv) provide further sworn testimony that explains the tenant’s reasons for previously being unable to make rental payments; (v) not have been late within the last 12 months in payment of rent either: (a) more than 2 times in 6 months; or (b) more than 3 times in 12 months; (vi) not have exercised the right of redemption within the last 6 months; and (vii) not have participated in the Program within the last 12 months.
If qualified, the court will direct the landlord and tenant to participate in the Program and enter into a court-ordered payment plan on a form provided by the court. The court-ordered payment plans will require the following: (i) all payments shall be made to the landlord, paid by cashier’s check, certified check, or money order, and received by the landlord on or before the 5th day of each month included in the plan; (ii) the remaining payments of the amounts on the amended unlawful detainer after the first payment made at the first docket call of the case shall be paid on the following schedule: (a) 25% due by the 5th day of the month following the initial court hearing, (b) 25% due by the 5th day of the 2nd month following the initial court hearing, and (c) the final payment of 25% due by the 5th day of the 3rd month following the initial court hearing; and (iii) all rental payments shall continue to be made by the tenant to the landlord as contracted for in the rental agreement within 5 days of the due date established by the rental agreement each month during the course of the court-ordered payment plan.
The court shall provide for a continuance of the case to allow for full payment under the plan. If the tenant makes all payments in accordance with the court-ordered payment plan, the judge shall dismiss the unlawful detainer as being satisfied. However, if the tenant fails to make a payment under the court-ordered payment plan or to keep current any monthly rental payments to the landlord as contracted for in the rental agreement within five days of the due date established by the rental agreement, the landlord shall submit to the general district court clerk a written notice, on a form provided by the court, that the tenant has failed to make payments in accordance with the plan, with a copy provided to the tenant. The court shall enter an order of possession without further hearings or proceedings, unless the tenant files an affidavit with the court within 10 days of the date of such notice stating that the current rent has in fact been paid and that the landlord has not properly acknowledged payment of such rent. A copy of such affidavit shall be given to the landlord. The landlord may seek a money judgement for final rent and damages.
While the Program does not currently apply to landlords in Northern Virginia, if successful, it is likely that not only will the Program become permanent in the current cities as of July 1, 2023, but also may be implemented on a Commonwealth-wide basis.
The 2019 amendments represent one of the most comprehensive updates to Virginia landlord-tenant law in many years. As such, landlords should familiarize themselves with the revised Code. For further information or questions related to this article, contact the author at: GLB@GDLLAW.COM or (202) 452 – 1400.