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Tenant Defenses to Evictions in Virginia

If you're a renter getting evicted in Virginia, you need to learn if you have legal grounds to fight your eviction. Here's a list of defenses available in Virginia.

Virginia law sets out specific rules and procedures for evicting tenants. The first step in the eviction process is for the landlord to terminate the tenancy with a written notice. Sometimes, the notice provides tenants with the opportunity to fix whatever problem prompted the notice, such as unpaid rent or a lease violation. In other situations, the notice might not give the opportunity to remedy the problem.

Often, tenants move out when they receive a notice to cure or quit. Sometimes, though, tenants refuse to fix the situation or move out by the deadline in the notice. When this happens, the landlord can file an eviction suit.

Not all eviction lawsuits are justified. As a tenant you might have a defense to the eviction suit—in other words, you might have reasons why a court should either dismiss your landlord's suit or deny your landlord's efforts to evict you.

Eviction Notice Requirements and Process in Virginia

The Virginia Residential Landlord and Tenant Act governs the relations between landlords and tenants. A landlord must file an eviction lawsuit, also called an unlawful detainer suit, and receive a court order before physically evicting a tenant. Before filing the eviction lawsuit, the landlord must give notice to the tenant. The type of notice required depends on the reason for the lawsuit.

Notice Requirements for Failure to Pay Rent

If a tenant fails to pay rent on time, a landlord must provide the tenant with a written notice that alerts the tenant to the nonpayment, and informs the tenant that the landlord will terminate the tenancy if rent isn't paid within 5 days. If the tenant does not pay the rent or move out within the five-day time period, then the landlord can proceed with the eviction. (Va. Code Ann. § 55.1-1245(F) (2020).)

Notice Requirements for Lease Violations

The type of notice a landlord must provide for a lease violation depends on the type of violation.

If the tenant's violation can be fixed, such as by not parking in an unauthorized parking space, then the landlord must provide the tenant with a written 30-day notice. The notice must specify the acts and omissions constituting the breach, and notify the tenant that the tenancy will terminate if the breach is not remedied within 21 days. If the tenant does not fix the violation within 21 days, then the landlord can file an eviction lawsuit. If the breach is remediable and the tenant adequately fixes it, the tenancy will not terminate. (Va. Code Ann. § 55.1-1245(A) and (B) (2020).)

If the tenant's violation cannot be fixed, such as willfully causing major damage to the rental unit, then the landlord must provide the tenant with a written 30-day notice that states the tenancy will terminate in 30 days. The notice must state what acts or omissions have breached the rental agreement or lease. At the end of the 30 days, if the tenant hasn't moved out, the landlord can file an eviction lawsuit (Va. Code § 55.1-1245(C) (2020).)

If the tenant's violation is a repeat of a previous violation, the landlord does not have to give the tenant a second opportunity to fix it. So long as the tenant has intentionally committed the breach, and it's of the same nature as the previous breach, the landlord can send a written notice specifying the acts and omissions constituting the recent breach, make reference to the prior breach, and state that the tenancy will terminate 30 days after receipt of the notice. (Va. Code § 55.1-1245(E) (2020).)

If the tenant's lease violation is also a criminal act, such as drug possession, the landlord does not need to provide the tenant with notice and can proceed directly to court for an eviction order. The initial hearing on the landlord's action for immediate possession will be held within 15 or fewer days of the service of notice. (Va. Code § 55.1-1245(C) (2020).)

Eviction Process in Virginia

Virginia eviction complaints are filed in either the general district court or the circuit court of the county where the rental property is located. The tenant will then receive a copy of the summons and complaint, and the summons will have a date and time on it for a hearing before a judge. If the tenant wishes to challenge the eviction, the tenant must attend the hearing. At the hearing, the judge will listen to both sides of the case and make a determination regarding the eviction. (Va. Code Ann. §§ 8.01-124, 126 (2020).)

Challenging an eviction is not always the best option. When tenants lose, they might have to pay the landlord's court and attorneys' fees. Tenants might also receive a negative credit rating, making it difficult to find housing in the future. Sometimes, a tenant's best option is to try to talk to the landlord and negotiate a deal outside the court system. Many communities have free or low-cost mediation services that handle landlord-tenant disputes; local resources are available through the website Mediate.com and the American Arbitration Association.

Eviction Defenses in Virginia

Under Virginia landlord-tenant law, judges may refuse to order an eviction in the following situations:

Landlord Used a "Self-Help" Eviction

A landlord must receive a court order to evict a tenant. If a landlord tries to evict a tenant through any other means, this is referred to as a “self-help” eviction. Examples of a self-help eviction include shutting off the utilities or blocking access to the rental property. Illegal evictions have serious consequences: A landlord who tries these types of procedures can be held liable to the tenant for damages and attorneys' fees. (Va. Code Ann. § 55.1-1243 (2020).)

Landlord Did Not Follow Proper Eviction Procedures

To terminate a tenancy and ultimately evict a tenant, landlords must closely follow state and local laws. When a landlord makes procedural mistake, the court must dismiss the eviction suit, meaning that the landlord must start the process all over. Some examples of common procedural mistakes include not providing the correct amount of time to cure a problem, improperly serving the notice to quit on the tenant, and errors in court filings. Often, courts notice procedural errors on their own, but tenants should be sure to point out potential problems—this can be done in the answer or at the hearing.

Retaliation

It is illegal for a landlord to threaten to evict or bring an eviction suit against a tenant in retaliation for complaining to the landlord or governmental agency about a health and safety violation, for organizing or becoming a member of a tenants' association, or testifying in a court procedure against the landlord. (Va. Code Ann. § 55.1-1258 (2020).) If you can demonstrate that your landlord filed a retaliatory eviction suit, the court will dismiss the suit, and might even award you money damages and your attorneys' fees and costs from defending the lawsuit.

Victim Status

Under certain circumstances, Virginia landlords may not terminate the tenancy and evict a tenant solely because the tenant is the victim of family abuse (“family abuse” is defined by Virginia Code Annotated section 16.1-228 (2020)). Victims of abuse must take certain steps to meet the requirements for this eviction protection. (Va. Code Ann. § 55.1-1245(D) (2020).)

Tenant Remedied the Violation

When tenants remedy the lease violation or pay unpaid rent within the period of time given to cure in the termination notice, the landlord cannot proceed with an eviction (Va. Code Ann. § 55.1-1245(B) (2020)). When tenants pay rent or cure a violation after receiving a notice, they should be sure to get a dated receipt of payment or take pictures of or document their otherwise fixing the violation. This evidence can be presented to the judge as a defense to the eviction.

Landlord Violated Duties

Virginia law allows tenants to assert a defense that they didn't pay rent due to the landlord's breach of certain duties. Tenants who haven't paid rent due to the landlord's allowing or causing a condition at the rental that risks occupants' life, health, or safety might be able to successfully defend against an eviction suit. Similarly, tenants who withhold rent because their landlord breached the terms of the lease or broke the law might also have a solid defense. In order to assert these defenses, though, tenants must carefully follow certain procedures laid out in the law. (Va. Code Ann. § 55.1-1241 (2020).)

Landlord Evicted the Tenant Based on Discrimination

Both state and federal laws make rental housing discrimination illegal. The federal Fair Housing Act makes it illegal for landlords to discriminate against rental applicants and tenants based on race, religion, sex, national origin, familial status (including children under the age of 18 and pregnant women), and disability. In addition, the Virginia Fair Housing Law (Va. Code Ann. §§ 36-96.1 to 36.96.23 (2020)) also makes it illegal for a landlord to discriminate against a tenant based on color and elderliness. If a landlord tries to evict a tenant based on any of these characteristics, the tenant can use the discrimination as a defense.

Resources for Tenants in Virginia

Virginia has several legal aid organizations that will provide free legal help to those who qualify based on income, including Virginia Legal Aid. The Virginia Legal Aid Society also provides landlord-tenant information, including a pamphlet on evictions and utility shutoffs. Virginians who live in federally assisted housing should also check out the resource section of the U.S. Department of Housing and Urban Development's (HUD's) website.

Local courts can also be a useful resource. Evictions are filed in either the general district court or circuit court of the county in which the rental unit is located. The Virginia court system provides an online directory for you to look up your local court's information.

When to Hire an Experienced Lawyer

If you have more specific legal questions about your eviction case or the landlord has already retained a lawyer, you should probably contact a local landlord-tenant attorney. A lawyer can handle the whole case or give you advice on how to proceed. A lawyer can also let you know how likely you are to win your case. You might especially want to hire an attorney if you are confident of your case and your lease or rental agreement entitles you to attorneys' fees if you win in court.

More Information on Evictions and Terminations

For more articles on the subject, see the Evictions and Terminations section of Nolo.com.

For more information on tenant rights, see Every Tenant's Legal Guide, by Janet Portman and Marcia Stewart (Nolo).

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