VA Real Property Distinctions

Question 1

Tenant’s defense to nonpayment of rent

Answer 1

that a condition exists on the leased premises that is a serious threat to the life, health, or safety of the occupants (e.g., lack of heat or running water, infestation).

To assert the defense, the tenant must prove that:

1. (i) prior to the commencement of the action, the landlord was served a (a) written notice of the condition by the tenant, but the landlord has refused or has (b) failed to remedy the same within a (c) reasonable time; and
2. (ii) the tenant, if in possession, has paid into court (i.e., escrow) the amount of rent found by the court to be due and unpaid.

There is a rebuttable presumption that a period of more than 30 days from receipt of the tenant’s notice by the landlord is unreasonable.

The landlord may answer the defense by establishing that the alleged conditions:

(i) do not exist;
(ii) have been remedied; or
(iii) were caused by the tenant.

The landlord may also answer the defense by establishing that the tenant has unreasonably refused entry by the landlord for the purposes of correcting such conditions.

Va. Code Ann. § 55-225.13:1.

Question 2

In Virginia, a landlord cannot charge a fee for late payment of rent unless:

Answer 2

the charge (i) is provided for in a written rental agreement, and

(ii) does not exceed 10 percent of the periodic rent payment or 10 percent of the balance due, whichever is less.

Va. Code Ann. § 55.1-1204(E).

Question 3

Failure to deliver possession of dwelling to tenant:

Answer 3

If the landlord willfully fails to deliver possession of the dwelling unit to the tenant, rent abates until possession is delivered and

the tenant may:

• (i) terminate the lease upon at least five days’ written notice to the landlord, or
• (ii) demand performance of the rental agreement by the landlord.
  
  • If the tenant elects, he may file an action for possession of the dwelling unit against the landlord or any person wrongfully in possession and recover the damages sustained by him.
    
    • If a person’s failure to deliver possession is willful and not in good faith, an aggrieved person may recover from that person the actual damages sustained by him and reasonable attorney fees. Va. Code Ann. §55-225.50.

Question 4

Tenant’s Remedy by Repair

Answer 4

Under residential leases in Virginia, if

(i) there is a condition in the dwelling unit that constitutes noncompliance with the rental agreement or law, or the condition constitutes a fire hazard or serious threat to life, health, or safety, and
(ii) the tenant provides notice of the condition in writing, -→

the landlord must make reasonable repairs within _14 day_s of receiving notice.

If the landlord does not take reasonable steps to repair, -→ the tenant may contract with a third party to remedy the condition and deduct the actual costs incurred.

• The tenant must provide an itemized statement and receipts.

This remedy is not available to the extent that (i) the condition was caused by the tenant or their guest, (ii) the landlord was denied access to remedy the condition, or (iii) the landlord remedied the condition before the tenant contracted with a third party.

Va. Code Ann. § 55.1-1244.1.

Question 5

Wrongful Failure to Provide Essential Services

Answer 5

If a landlord willfully or negligently fails to supply heat, running water, hot water, electricity, gas, or other essential services, → then the tenant must serve written notice on the landlord identifying the breach and give the landlord a reasonable time to cure the deficiency.

If the landlord fails to correct the deficiency within a reasonable time, → the tenant may:

• (i) recover damages based on the diminution in the fair rental value of the dwelling unit; or
• (ii) move into substitute housing, in which case the tenant is excused from paying rent for the period of the landlord’s noncompliance.

Va. Code Ann. § 55.1-1239.

Question 6

irrevocable equitable easement

Answer 6

can arise when an attempt is made to create a license and then the licensee changes his position (e.g., by expending money) in reliance on that license. Carpenter v. Stapleton, 192 S.E.2d 792 (Va. 1937).

Question 7

Part Performance Exception to the Statute of Frauds for the Sale of Real Property

Answer 7

Under Virginia law, the defense of part performance is established by a showing that:

(i) the parol agreement (i.e., oral agreement) relied on is “certain and definite in its terms,”
(ii) the acts proved in part performance “refer to, result from, or [were] made in pursuance of the agreement,” and
(iii) the agreement was “so far executed that a refusal of full execution would operate a fraud upon the party, and place him in a situation which does not lie in compensation.”
* Moorman v. Blackstock, Inc.*, 661 S.E.2d 404 (Va. 2008); quoting Runion v. Helvestine, 501 S.E.2d 411 (Va. 1998).

Question 8

Implied Warranty of Fitness or Suitability (New Homes)

Answer 8

(1) Free from structural defects and would meet standards of construction trade; and
(2) Fit for habitation
* Written notice required; seller has reasonable time to cure (no more than 6 mths)
* For Non-condominiums: Warranty lasts for 1 yr from earlier of date of transfer of title to buyer, or buyer taking possession / Five-year warranty with regards to the foundation of the dwelling
* For condominiums: Warranty lasts for 2 years

Question 9

Implied Warranty of Fitness or Suitability (New Homes) Statute of Limitations

Answer 9

For residences other than condominiums: 2 yrs (period tolled during six month cure period)

For condominiums: 5 yrs