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Withholding Rent in Virginia

Posted by attorney Robert Reed

Quite commonly tenants will withhold rent from their landlords as leverage to get the landlord to act or as payment for some breach of the lease they believe their landlords have committed. If you are a tenant in Virginia, do not withhold rent as a means of getting the landlord to do what you want! If you are a landlord in Virginia, do not let your tenant get away with withholding rent!

In Virginia there are two coexisting sets of law governing the relationship between landlords and tenants. There is the common law, developed through judicial decisions, some of which has been codified in the Virginia Code under the Landlord Tenant Act. See Virginia Code §§ 55-217 through 55-248 (1950). These laws mostly apply to commercial leases, but can also apply to a significant number of residential leases. There is also the Virginia Residential Landlord and Tenant Act (VRLTA), which, as the name implies, governs the relationship between most landlords and tenants in a residential context. See Virginia Code §§ 55-248.2 – 55-248.40 (1950). When you enter into a residential lease agreement in Virginia, your agreement is governed by VRLTA, unless it falls within one of several exceptions. The most commonly applicable exception is when the landlord rents out fewer than 4 single family residences in urban areas or fewer than 10 single family residences in rural areas (there’s a clear distinction between urban and rural not worth delving into; see the statute).

Under the common law, a tenant is only allowed to withhold rent once he has abandoned the property for some justifiable reason. A tenant who withholds rent forfeits his claim to the tenancy and the landlord can have him evicted! See Va. Code § 55-225. When the landlord sues for possession of the property and back rent owed, the tenant may counter-sue the landlord for a set-off if he can show the landlord breached the lease. If you are a landlord, even if your lease is not covered by VRLTA, you should still include a provision in your lease that makes it clear that a tenant cannot withhold rent under any circumstances and must address any claims in the courts.

VRLTA is a bit different. If the tenant believes that the landlord has materially breached the lease agreement, then the tenant may file a complaint with the local General District Court declaring the problem and asking for relief. See Va. Code § 55-248.27. Before going to court, the tenant must have notified the landlord of the situation and given the landlord reasonable time to correct it. When the tenant files the assertion with the court, he can at that point pay his rent to the court for safe keeping in an escrow account. At the disposition of the case, the court may order all of the rent payments accumulated in the court escrow account to be distributed either to the tenant or to the landlord or some to each of them.

It is clear that under VRLTA the tenant cannot simply withhold rent to satisfy a perceived problem with the lease. The tenant must be careful to follow the letter of the law and continue to pay rent, whether to the Landlord or to the court, until the situation is resolved.

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