Tenant Assertion in Virginia
When and how to file a Tenant Assertion
BackgroundTenants sometimes have a bad landlord - a critical part of the rental unit isn't fixed (heat or air conditioner not working, roof leak, mold, leaking pipes, etc.). Unless the tenant has a 'month to month' lease, they can't just 'break the lease' and move. They have to give the landlord an opportunity to fix the problem. If the landlord doesn't, then the tenant can pay rent to the General District Court and a judge will review the situation. This guide covers when and how to do that.
When is a Tenant Assertion justified?A Tenant Assertion is justified when the landlord is failing to supply a critical part of what the tenant is paying for. Examples include no heat, no hot water, no air conditioning, broken refrigerator (where included in lease) serious leaks, mold, unsafe conditions (hole in floor, no stair safety rail, etc) so that it is difficult to 'enjoy' living in the unit.
NOT justified is small stuff that is annoying but does not affect the livability or safety of the rental unit. Slowly dripping faucet, squeaky floor, loose handle on a drawer, etc.
Tenant assertions are covered in the Virginia Residential Landlord Tenant Act, which starts at 55-248.2 The specific section dealing with tenant assertions is 55-248.27 It*s available on the internet https://law.lis.virginia.gov/vacode/title55/chapter13.2/section55-248.2/, and you need to read it carefully.
Read your lease - and read it againThe first thing you do is read your lease. Read it carefully, word for word. Here are some things to look for:
Who is the owner? Many rental units have a property management company * they*re NOT the owner, they*re just the agent of the owner. If it*s a property management company, look at the lease to see if they have authority to receive service of process below) on behalf of the owner. Even if they do, I recommend serving the owner anyhow.
Who is responsible for repairs and maintenance? In some leases * usually for single family houses * require the tenant to make certain repairs and perform some maintenance chores. Replacing the furnace filter is an example of one of them. 0
Attorneys fees: who pays attorneys fees? Many leases have the tenant pay the landlord*s attorneys fees if the tenant files * and loses * a tenant assertion. Make sure your problem is worth this risk.
Are you doing anything that violates the terms of the lease? Did that contribute to your problem? If so, think carefully before doing anything.
What notice is required to the Landlord?A landlord has to have *reasonable* notice that something is wrong before you file an assertion. You have to be able to prove that you gave notice and your attempts to get the landlord to fix the problem.
What is *reasonable notice* is subjective and depends on the circumstances. A broken furnace in January is very important and a couple of days notice is all that*s required IF the landlord isn*t doing anything about it. (a good landlord will tell you exactly what*s happening; using the example of broken furnace, it could happen during a time when a lot of other furnaces failed and the repair people are too busy to get to you immediately * it may be an extra day or two). On the other hand, a broken stove isn*t as critical so a week * or two * to fix or replace it is reasonable. If you were the landlord, how long would you take to fix the problem?
Keep track (in writing) of the dates and methods you contacted the landlord about the problem and the response. A telephone call is good for the first notice; so is a text. If nothing happens send an email or hand deliver a written notice (keep copies of course) about the issue. Depending on how critical the problem is, you may want to do it again
Where, Who, and how to sueIn Virginia Suit is filed in the General District Court for the city or county where the property is located. Don*t use the *post office* locality as some counties use the name of the nearby city for mail. Find out where the property is actually located.
The owner is sued. Not the management company. Not the manager. Sue The owner. The other people are agents of the owner and even if they messed up, the owner is responsible for what they did or didn*t do. The owner*s name should be on the lease itself; you can also find out by calling the local government and asking (in Virginia, it*s usually the Commissioner of the Revenue who can tell you). If your locality has a good *GIS* (mapping) system you can find it there.
The owner has to receive notice of the suit; this is usually done by the sheriff, and you have to tell the sheriff where to find the owner. If the owner is an individual, they (usually) get served at their home. If the owner is a corporation or LLC, you*ll have to serve either their *Registered Agent* or an officer of the corporation. Usually serving the *Registered Agent* is easier. In Virginia you find that by going to the State Corporation Commission website, go to the Clerk*s Office>Existing business>entity search>search all entities and then enter your owner*s correct name (see above). Here*s a shortcut to that last page: https://cisiweb.scc.virginia.gov/z_container.aspx In addition to service of the papers by the sheriff, you should mail (first class is fine) a copy to the same address you*re asking the sheriff to serve the papers.
Getting ready for courtFirst, when you file the suit, ask the clerk what they can tell you about how they do stuff in that court. It*s different all over Virginia and knowing in advance how they do things in that court will help a lot. Some courts try the case on the *return date* (the day the clerk tells you it is set) Other courts schedule *contested cases* for a different date; some do both.
Prepare for court * even before you file suit, get prepared. You want copies of ALL correspondence (including emails and texts) put together in an organized fashion (usually by date). Most courts won*t let you take your cell phone in with you, so PRINT EVERYTHING ON PAPER. And make a bunch of copies * one for the judge, one for you, one for the owner of the property (they have the right to see everything you give the judge). Label each picture; draw a diagram of your apartment and show where each picture was taken. List, by date, and Total up the money you*ve lost and want the court to give back, have receipts for everything (including proof you paid rent).
Prepare, prepare, prepare, and prepare again.
There are people who have seen what you*re complaining about. They are witnesses. If you want to make sure they appear (a promise is easily broken) get a subpoena issued by the court at least three weeks before the hearing (the clerk will help). Tell your witness that*s in case they*re sick that day you can get the case continued. Without a subpoena the court won*t continue a case if your witness doesn*t show up. Without a witness your chances of winning are hurt.
TrialAt the hearing you*ll go first. HAVE A WRITTEN OUTLINE. Tell the story step by step * when you looked at the property, when you signed the lease (and introduce a copy at that time). Talk about the problems * what they are and when they started * and when, and how, you told the owner about them. (introduce your emails, texts and pictures as you do this). When you*ve finished the owner (or his lawyer) and the judge will have questions. Answer them truthfully, even if the truth doesn*t help you.
When you*re finished telling your story, you then call your witnesses. They probably won*t be in the courtroom, so they won*t know what you*ve said. Ask them questions step by step: if they*ve been in your rental unit, did they notice a particular problem, is (picture) show that problem, etc. If they heard you and the owner talk, they might be able to recount what they heard (there*s a complicated *hearsay* issue, but try anyhow). When you finish asking questions, the owner and judge can then ask.
When you*ve finished your evidence, the owner has a chance; you can ask the owner and his witnesses questions, as can the judge.
If you feel like the case is going REAL bad, and you*re totally lost and can*t figure out what*s going on, you have ONE chance at a *do over* * it*s called a Non Suit. Just say, *Judge, I apologize, but I*m so lost right now I think I*d like a Non-Suit*. Yes, the judge might be irritated; for sure the Owner will be. But is you feel the case is so out of control you want to start over, you have that right. But only ONCE.
After all testimony and exhibits have been given to the judge, the judge may ask for a summary. THANK the judge for their time (maybe thank the Owner for their courtesy in the hearing if they have been nice) and then give a quick overview of the evidence you*ve provided, and ask for what you want the judge to do. You can ask for the lease to be ended, to get your money back, to get paid damages you suffered because the owner failed to do something they should have. And you can ask for all of them * just be sure to ask and itemize what you want.
The judge will usually give a decision on the spot; have some paper so you can write anything down, but you can also get a copy of the court*s decision from the clerk.
After the hearing is over, if you won you may have to try to collect your money; if you lost you have the right to appeal. (the owner can appeal it also). Those items are beyond the scope of this outline.
PAYMENT OF RENT DURING THE CASEThis is an edit after the original outline was posted. A tenant assertion lets you pay your rent to the court until the case is decided. THE LAW DOES NOT LET YOU WITHHOLD PAYING RENT. By paying it to the court, you show good faith that you can and will pay the rent, but it keeps the landlord from getting it until the judge has decided the case. The neat part about this is that the judge can give you some, or all, of the rent back if the landlord or the problem was really that bad, and the landlord can't evict you for non-payment of rent.