Virginia Enacts Provisions Regarding Foreclosure Notice
The Commonwealth of Virginia amended its provisions regarding notice to tenant in the event of a foreclosure. These provisions are effective on July 1, 2018.
Failure to pay certain rents after five days’ notice forfeits right of possession.
“If any tenant or lessee of commercial or other nonresidential premises being in default in the payment of rent, shall so continue for five days after notice, in writing, requiring possession of the premises or the payment of rent, such tenant or lessee shall there by forfeit his right to the possession. In such case, the possession of the defendant may, at the option of the landlord or lessor, be deemed unlawful, and he may proceed to recover possession of the premises.”
“The right to evict a tenant whose right of possession has been terminated in any commercial or other nonresidential tenancy may be effectuated by self-help eviction without further legal process so long as such eviction does not incite a breach of the peace. Eviction may also be effectuated by the filing of an unlawful detainer action as provided by Article 13 (§ 8.01-124 et seq.) of Chapter 3 of Title 8.01, entry of an order of possession, and eviction pursuant to § 55-237.1 .”
Tenant to maintain dwelling unit.
“The tenant shall be financially responsible for the added cost of treatment or extermination due to the tenant’s unreasonable delay in reporting the existence of any insects or pests and be financially responsible for the cost of treatment or extermination due to the tenant’s fault in failing to prevent infestation of any insects or pests in the area occupied.”
“The tenant shall also use reasonable care to prevent any dog or other animal in possession of the tenant, authorized occupants, or guests or invitees from causing personal injuries to a third party in the dwelling unit or on the premises, or property damage to the dwelling unit or the premises.”
Wrongful failure to supply heat, water, hot water, or essential services.
“If contrary to the rental agreement or provisions of this chapter, the landlord willfully or negligently fails to supply heat, running water, hot water, electricity, gas, or other essential service, the tenant must serve a written notice on the landlord specifying the breach if acting under this section and, in such event, and after a reasonable time allowed for the landlord to correct such breach, may:
- Recover damages based upon the diminution in the fair rental value of the dwelling unit; or
- Procure reasonable substitute housing during the period of the landlord’s noncompliance, in which case the tenant is excused from paying rent for the period of the landlord’s noncompliance, as determined by the court.”
The rights of the tenant under this section shall not arise until he has given written notice to the landlord; and no rights arise where the condition was caused by the deliberate or negligent act or omission of the tenant, a member of his family, or other person on the premises with his consent.
Landlord’s noncompliance as defense to action for possession for nonpayment of rent.
“In an action for possession based upon nonpayment of rent or in an action for rent by a landlord when the tenant is in possession, the tenant may assert as a defense that there exists upon the leased premises a condition that constitutes or will constitute a fire hazard or a serious threat to the life, health, or safety of occupants thereof, including but not limited to a lack of heat or running water or of light or of electricity or adequate sewage disposal facilities or an infestation of rodents, or a condition that constitutes material noncompliance on the part of the landlord with the rental agreement or provisions of law.”
Security deposits.
“As of the date of the termination of the tenancy or the date the tenant vacates the dwelling unit, whichever shall occur last, the tenant shall be required to deliver possession of the dwelling unit to the landlord. If the termination date is prior to the expiration of the rental agreement or any renewal thereof, or the tenant has not given proper notice of termination of the rental agreement, the tenant shall be liable for actual damages pursuant to § 55-225.48, in which case, the landlord shall give written notice of the disposition of the security deposit within the 45-day period but may retain any security balance to apply against any financial obligations of the tenant to the landlord pursuant to this chapter or the rental agreement. If the tenant fails to vacate the dwelling unit as of the termination of the tenancy, the landlord may file an unlawful detainer action pursuant to § 8.01-126.”
Landlord may obtain certain insurance for tenant.
“If a tenant allows his renter’s insurance policy required by the rental agreement to lapse for any reason, the landlord may provide any landlord’s renter’s insurance coverage to such tenant. The tenant shall be obligated to pay for the cost of premiums for such insurance as rent or as otherwise provided herein until the tenant has provided written documentation to the landlord showing that the tenant has reinstated his own renter’s insurance coverage.”
Confidentiality of tenant records.
“No landlord or managing agent shall release information about a tenant or prospective tenant in the possession of the landlord to a third party unless the information is requested by an employee or independent contractor of the United States to obtain census information pursuant to federal law.”
Failure to deliver possession.
“If the landlord willfully fails to deliver possession of the dwelling unit to the tenant, rent abates until possession is delivered and the tenant may terminate the rental agreement upon at least five days’ written notice to the landlord and, upon termination, the landlord shall return all prepaid rent and security deposits or demand performance of the rental agreement by the landlord. If the tenant elects, he may file an action for possession of the dwelling unit against the landlord or any person wrongfully in possession and recover the damages sustained by him.”
Notice to tenant in event of foreclosure.
“The landlord of a dwelling unit used a single-family residence shall give written notice to the tenant that the landlord has received a notice of a mortgage default, mortgage acceleration, or foreclosure sale relative to the loan on the dwelling unit within five business days after written notice from the lender is received by the landlord. If the landlord fails to provide the notice required by this section, the tenant shall have the right to terminate the rental agreement upon written notice to the landlord at least five business days prior to the effective date of termination. If the tenant terminates the rental agreement, the landlord shall make disposition of the tenant’s security deposit in accordance with law or the provisions of the rental agreement, whichever is applicable.”
The amendment also lays out prohibited provisions in rental agreements and also provides for the early termination of a rental agreement by military personnel.
Rhona Kyeyune, LLM, is a regulatory compliance consultant with CLA. She is a graduate of Makerere University and earned her master of laws at Boston University School of Law.
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