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 how.

A landlord can evict a tenant in Virginia for a variety of reasons, including tenant failure to pay rent or tenant violation of a portion of the lease or rental agreement. A tenant facing an eviction may have at least one defense available to fight the eviction.

This article will examine the basic eviction process in Virginia, as well as the most common defenses available to a tenant facing eviction for not paying rent or violating a portion of the lease agreement.

Eviction Notice Requirements and Process in Virginia

The Virginia Residential Landlord and Tenant Act and the Landlord and Tenant chapter of the Code of Virginiaregulate the relations between a landlord and tenant and provide the correct procedures a landlord must follow when trying to evict a tenant. A landlord must file an eviction lawsuit, also called an unlawful detainer suit, and receive a court order before actually 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 at least five days’ notice before filing the eviction lawsuit. The notice must be written, and it must give the tenant the option to either pay the rent or leave the premises. 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 (see Va. Code Ann. § 55-225).

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 give the tenant 21 days to fix the violation or the lease will terminate at the end of the 30-day period. If the tenant does not fix the violation within 21 days, then the landlord can file an eviction lawsuit (see Va. Code Ann. § 55-248.31(A)).

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 lease will terminate in 30 days. At the end of the 30 days, the landlord can proceed to court to file the eviction lawsuit (see Va. Code § 55-248(31)(C)).

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 court order (see Va. Code § 55-248(31)(C)).

Eviction Process in Virginia

If the tenant has not paid rent or corrected the lease violation after receiving proper notice, then the landlord can file a complaint to begin the eviction lawsuit. The complaint is filed in either the general district court or the circuit court of the county where the rental property is located (see Va. Code Ann. § 8.01-124). 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 (see Va. Code Ann. § 8.01-126).

The tenant may find that challenging the eviction is not always the best option. If the tenant loses, the tenant might have to pay the landlord's court and attorney's fees. The tenant could also receive a negative credit rating and could be turned down for future housing. The best option for the tenant might be 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. The mediation faqs on the Nolo site provide more information on the subject.

Eviction Defenses in Virginia

A tenant faced with an eviction in Virginia may have at least one defense available to fight the eviction.

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. A landlord who tries these types of procedures can be held liable to the tenant for damages (see Va. Code Ann. § § 55-248.26, 55-225.2). See the Nolo article, Illegal Eviction Procedures in Virginia, for more information on self-help evictions.

Landlord Did Not Follow Proper Eviction Procedures

When evicting a tenant, a landlord must carefully follow all the proper procedures as set out by the law. If a landlord does not follow the procedures exactly, the eviction may be delayed. For example, a landlord must give a tenant a written notice that provides five days to pay rent. If the landlord does not give the tenant the notice but instead proceeds directly to court to file the eviction lawsuit, the tenant could use lack of notice as a defense to the eviction. However, this type of defense will not completely dismiss a justified eviction. The landlord will have the opportunity to correct the procedural deficiency. As soon as the landlord provides the notice and waits the appropriate amount of time, the landlord can file a new eviction lawsuit and proceed with the eviction.

Landlord Evicted Tenant for Not Paying Rent

A tenant who is being evicted for not paying rent may have a defense available.

Tenant Paid Rent in Full

Virginia law requires a landlord to give the tenant five days to pay rent, after the rent is late. If the tenant pays the rent during this time period, the landlord must not proceed with the eviction lawsuit (see Va. Code Ann. § 55-225). When paying rent during the five-day time period, the tenant should request a time-stamped receipt. If the landlord proceeds with an eviction lawsuit even after the rent is paid, the tenant can use the receipt as evidence that the rent was paid within the appropriate time frame.

Landlord Did Not Maintain the Rental Unit

A landlord in Virginia is required to maintain the rental unit in good repair and in a habitable condition. The landlord’s obligations include:

  • keeping the building in compliance with health and safety codes
  • keeping all common areas safe and clean
  • maintaining in good working order all electrical, plumbing, sanitary, heating, ventilating, and other facilities and appliances provided by the landlord for the tenant’s use
  • preventing the growth of mold
  • providing trash receptacles
  • providing running water, including hot water, and
  • providing heat and air conditioning, as required by the seasons.

See Va. Code Ann. § 55-248.13.

If the rental unit is in need of repair in one of these areas and the repair materially affects health and safety, then the tenant must provide the landlord with a written notice detailing the necessary repairs. If the repair can be fixed, the notice must give the landlord 21 days to make the repairs or state that the lease agreement will terminate in 30 days. If the landlord does not make the repairs, the tenant can move out of the rental unit and terminate the lease. If the repair cannot be fixed, then the tenant must provide the landlord with a written notice stating the problems and that the lease agreement will terminate in 30 days (see Va. Code Ann. § 55-248.21).

If the landlord fails to supply heat, running water, hot water, electricity, gas, or another essential service, the tenant must give the landlord a written notice detailing what is needed. The notice must give the landlord a reasonable time to supply the service. If the landlord does not supply the necessary services, then the tenant has two options:

  1. The tenant can go to court to recover damages equal to the reduced value of the rental unit.
  2. The tenant can find another place to live until the repairs are made and not pay rent during the time period, as determined by the court.

Either way, the tenant must go to court for a determination of the damages and rent owed (see Va. Code Ann. § 55-248.23).

The tenant can also choose to just not pay rent to the landlord until any necessary repair is made. If the landlord brings an eviction action against the tenant for not paying rent, the tenant could use evidence that necessary repairs were needed at the rental unit as a defense against the eviction. The tenant must prove, though, that the landlord was given a written notice and reasonable time to make the repair and that the landlord did not make the repair. The tenant, in the meantime, must pay the rent to the court, and the court will hold the rent in escrow until damages are determined. The court may determine that any portion of the rent being held in escrow must be paid to the landlord or returned to the tenant (see Va. Code Ann. § 55-248.25).

Landlord Evicted Tenant for Violating the Lease Agreement

A landlord must give a tenant a 30-day notice if the tenant is violating the lease agreement. The notice must give the tenant 21 days to correct the lease violation. If the tenant corrects the violation within the 21 days, then the landlord must not proceed with an eviction lawsuit (see Va. Code Ann. § 55-248.31(B)). If the landlord proceeds with the eviction even after the tenant fixed the violation, the tenant can use evidence that the violation was fixed within the appropriate time frame as a defense against the eviction.

Landlord Evicted the Tenant Based on Discrimination

The federal Fair Housing Act makes it illegal for a landlord to discriminate against a tenant based on race, religion, gender, national origin, familial status (including children under the age of 18 and pregnant women), and disability. In addition, the Virginia Fair Housing Law 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 to the eviction. See the Nolo article Housing Discrimination Prohibited by State and Local Law for more on laws prohibiting discrimination against tenants.

Resources for Tenants in Oklahoma

Virginia has several legal aid organizations that will provide free legal help to those who qualify based on income, including Virginia Legal Aid and the Virginia Legal Aid Society. The Virginia Legal Aid Society also has a booklet with more information on evictions in Virginia. Tenants who live in federally assisted housing should also check out thetenant resource page at HUD.gov.

Local courts may 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 the court information in your county.

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 also contact a lawyer. 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 may especially want to hire an attorney if you are confident of your case and your lease or rental agreement entitles you to attorney fees if you win in court.

For advice on finding a good lawyer, see the Nolo article How to Find an Excellent Attorney.

Also check out Nolo’s Lawyer Directory for Virginia lawyers who specialize in landlord-tenant law.

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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