Why now is a good time for residential landlords to review their leases and the law

The Legal Point

Earlier this year, the Daily Press reported that a study conducted by Princeton University’s Eviction Lab found that five Virginia cities, including both Hampton and Newport News, were among the top 10 communities in America with the highest rates of residential evictions. That study, based on data from 2016, concluded that Hampton was third and Newport News was fourth on the list, behind Richmond (second) but ahead of Norfolk (sixth) and Chesapeake (10th).

Since then, officials from local housing authorities, state and local lawmakers and local nonprofit organizations and a few of the area’s “community-minded landlords” (as the newspaper described them) have joined in discussions to address numerous issues raised by the study, ranging from the accuracy of the study and the need for more affordable housing to the provision of services to and resources for tenants facing eviction.

The fact is, however, that all residential landlords—and not just the “community-minded” ones—should join in these discussions, as new restrictions on landlords in the eviction process already have been proposed as the initial solution to concerns raised by the study.

For example, shortly after the results of the study were made public, the Virginia Poverty Law Center (VPLC) made two proposals to the Virginia Housing Commission that, if made a part of Virginia law, would give delinquent tenants both more time to pay rent before eviction proceedings could begin and, after eviction proceedings have begun, the ability to stave off eviction by paying off what they owe as late as the day before the eviction.

Although the Commission did not act on the two pro-tenant proposals, the VPLC stated its intention to continue to pursue such expansion of tenant rights, both with the Commission and, ultimately, in the General Assembly.

In addition to monitoring the fallout from the results of the Eviction Lab’s study, all residential landlords also should take this opportunity to review their leases in light of significant changes made by the General Assembly in 2017 and 2018 to the Virginia Residential Landlord and Tenant Act (VRLTA), Virginia Code §55-248.2 et seq.

The most notable among the many changes made by the legislature is in the scope of coverage of the VRLTA. Historically, the VRLTA has been perceived by landlords owning a small number of residential rental units as more onerous on landlords than the less technical provisions of Virginia Code §55-217 et seq., that apply to all residential leases not covered by the VRLTA. Prior to 2017, the provisions of the VRLTA expressly did not apply to residential leases where the owners were natural persons or their estates that owned no more than two single-family residences unless the lease expressly said so.

In 2017, however, the General Assembly repealed that exemption and made ALL residential leases subject to the VRLTA unless a landlord who owns no more than two residential dwelling units has, in the lease, a provision expressly opting out of the VRLTA.

Finally, in contrast to perceptions about the VRLTA, the General Assembly made two amendments to the VRLTA in 2018 that benefit residential landlords.

First, a residential landlord now may accept rent payments from the tenant while the landlord proceeds with an eviction so long as the landlord included reservation-of-rights language in the original five-day pay or quit notice. This change relieves a landlord from providing the tenant with a post-judgment reservation-of-rights notice each time a payment is made and accepted prior to the actual eviction.

Second, upon request of the landlord, the court is required to award judgment for immediate possession of the premises both when the tenant fails to appear and, now, when a defendant appears and consents to judgment. As was the case before the change, however, no eviction may be conducted until after the 10-day appeal period.

In short, NOW is a good time for all residential landlords, regardless of the number of dwelling units they own, both to review the numerous recent changes to the laws applicable to their leases and to monitor progress made by pro-tenant organizations in promoting more restrictions on landlord rights in the eviction process.

Frank A. Edgar, Jr
About Frank A. Edgar, Jr 3 Articles
Frank A. Edgar Jr. is an attorney with the law firm of Goldstein, Edgar & Reagan in Newport News. He can be reached at faedgarjr@ibglaw.com or 757-873-8773.

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