By Peter Anderson 

With alarming frequency, nursing homes are slipping arbitration clauses into the reams of paper elderly people musty sign when being admitted to a nursing home. There are 2.5 million Americans living in nursing homes or senior living centers. Some legal advocates believe that as many as 90% of large nursing homes in the U.S. now include arbitration agreements in their admissions contracts.

In many cases, these agreements allow nursing homes to avoid being sued in a normal civil court. This means there is no judge, no jury, and the proceedings in most cases will remain sealed from the public eye. If a person who is injured by a nursing home’s negligence as their case resolved through arbitration, the press will never hear about it, and a Google search will not reveal the case.

Arbitration was meant as a tool for business to resolve disputes quickly and efficiently to avoid courts. However, the use of arbitration has expanded over the past 30 years, and has been increasingly used to deprive consumers, who have little legal knowledge, of their rights. Today, asking the elderly to sign arbitration agreements has become standard industry practice.

​The nursing home industry argues that arbitration is good for business. Industry insiders say that claims subject to arbitration settle for 7% lower total cost to the business and three months sooner than claims with no arbitration. On the other hand, trial lawyers and consumer-rights advocates argue that arbitration agreements deprive consumers of a right to a fair trial and public proceeding.

Why Arbitration Agreements are Bad for Nursing Home Residents

There are several problems with arbitration agreements from my perspective. First, in many instances nursing home residents do not know what they are signing. Elderly consumers may have varying degrees of dementia and are presented with page after page of documents to sign before they can be admitted. Some provisions are benign – the nursing home first may ask the patient to sign a “resident’s rights” document. But, the nursing home may also bury an arbitration agreement in the middle. These agreements are very complex with legalese. The nursing home resident is anxious to be admitted and is not thinking about the wording of every sentence. If the resident has Alzheimer’s or dementia, it is unconscionable to ask such a person to sign a complex contract. But it happens all the time.

Second, arbitration agreements are known to result in lower awards. Instead of a jury hearing your case, who may be outraged by the allegations of neglect, an arbitrator will hear the case. An arbitrator is usually someone with knowledge of insurance disputes or an attorney. These people may have become numb to injury claims and may be less likely to award a large amount of money to a claimant. Further, arbitrators are often chosen from a short list of regional professionals. The same arbitrator can decide cases involving the same nursing home over and over again. This incentivizes arbitrators to keep repeat clients happy and give more favorable decisions to repeat offenders. Studies show that awards to plaintiffs can be as much as 35 percent lower.

Third, arbitration has different rules. What might be considered hearsay in civil court may be admissible under the lax rules of arbitration. Speculation about the cause of a resident’s injuries would be more likely to be heard in arbitration than in a regular court, which typically only allows expert witnesses to opine on causation.
 
Virginia Law on Nursing Home Arbitration Agreements

Under Virginia Code § 8.01-581.01, “a written agreement to submit any existing controversy to arbitration or a provision in a written contract to submit to arbitration any controversy thereafter arising between the parties is valid, enforceable and irrevocable, except upon such grounds as exist at law or in equity for the revocation of any contract.” Unfortunately, courts have held that Virginia law favors arbitration provisions. Bishop v. Med. Facilities of Am. XLVII (47) Ltd. P'ship, 65 Va. Cir. 187 (2004).

However, if you have a claim against a nursing home and are trying to invalidate an arbitration provision, here are a few possibilities:

• Agency – The nursing home resident did not sign the contract herself, and the family member, or nursing home employee, who did not have a valid authority to do so.
• Competency – The nursing home resident did sign the contract herself, but was not competent to do so at the time. The contract can be invalidated by showing that the person had dementia or Alzheimer’s at the time the contract was signed.
• Waiver – A nursing home may waive the right to arbitrate by litigating an issue covered by arbitration. For example, if the nursing home has filed a lien for unpaid medical bills, that may act as a waiver of the entire arbitration agreement.
• Fraud – A nursing home may have fraudulently induced a nursing home resident to sign a contract by misrepresenting the contents of the agreement or making untrue promises with respect to the agreement, the nursing home, or nursing home arbitration clause.

Invalidating a nursing home arbitration clause is a tough task. If you are pursuing a nursing home negligence case (or another claim against the nursing home), it is important to hire an attorney who as experience in dealing with arbitration agreements. If you or loved one has a question about a nursing home arbitration clause or nursing home abuse, please contact us and we'll try to be helpful.

By Omar Bississo

Thinking about drinking and driving?

You don’t have to worry about a DUI if you never put yourself in a position to get arrested for one. If you’re going to drink, plan ahead so that you’re not behind the wheel. Many innocent people have been charged with DUI, even though they were not drunk.

Even if you’re lucky enough to get your charge dropped, dismissed, or reduced, going through the court process is tedious, emotionally and psychologically draining, and very costly. In many cases, you may actually still get convicted, even if you weren’t actually driving under the influence! Of course, you may also get killed or seriously injured, or kill another driver. The risk to your safety and the risk of other charges related to a DUI accident alone are good reason to never drive under the influence.

But let’s examine the financial costs too. Next time you’re thinking about drinking and driving, do this simple math.

Let’s assume you’re out with friends or at another person’s home. You start drinking and before you know it, you’re a little tipsy or intoxicated. Let’s further assume that you live far from your house, and let’s even assume your car will get towed if you leave it overnight. If you do the right thing, your costs will look like this:

Cost of Uber/Lyft/Taxi: $15-$75.

Cost of Getting car towed and retrieved: $150-$250.

So you can see roughly you will pay $165-$325 assuming the highest costs possible AND assuming your car will get towed (which usually does not happen).

Now let’s look at what a DUI charge will cost you on average:

Attorney’s fees: $2,000- $7,500.

Administrative car impound fee: $175-300.

Criminal Fines: $250- $2,500.

Administrative Court Costs: $200.

Alcohol Safety Classes $600- $1200.

Ignition Interlock costs: $80 Installation plus $70-$80/month for 6 -12 months.

So a DUI charge can be very costly--well into the thousands of dollars.  Even if you win, you will incur attorney’s fees in the process.

Throw in the incalculable costs of a one year license suspension, permanent criminal record, and employment consequences, and the decision becomes easier.

So there it is: The next time you’re thinking about drinking and driving, do that simple math and then ask yourself if it’s worth it, both financially and from a safety perspective.

If you're reading this post after you received a DUI, please contact us and we'll try to be helpful.

By Stephanie Minkoff

When you purchase a condo, townhouse, or freestanding home in a neighborhood with shared common areas—such as a swimming pool, parking garage, or even just the grass and sidewalks in front of each residence, these common areas are maintained by a private homeowners association, or HOA. The HOA will set the rules for the common areas and help maintain and manage those areas for the benefit of the community as a whole.
 
Owners are obligated to join the HOA and will typically pay a monthly or annually HOA fee for the upkeep of those common areas. To determine the amount that home or condo owners must pay, the HOA will typically develop a budget. The financial resources needed to support the budget is often divided by the number of properties located within the community.  Prior to purchasing a home or a condo, potential buyers should review the documentation associated with the HOA. These can include the articles of incorporation, bylaws, covenants, conditions and restrictions, budgets, past meeting minutes, etc. Many sales contracts have a contingency provision to allow buyers the opportunity to review these association documents prior to finalizing the sale. Additionally, the association may also impose a special assessment for one-time expenses when reserve funds do not cover the costs of a major repair or specific improvement. 
 
If the homeowner fails to pay these dues and falls behind on payments, in addition to imposing late fees and fines, the HOA may take legal action. The association could file a lawsuit, get a lien on your home that could lead to foreclosure and/or suspend the owners right to certain common areas or privileges within the property. If an HOA does take legal action, owners may be required to pay the delinquent association fees plus any imposed late fees. Many associations’ governing documents will also state that the association is entitled to recover its court costs and attorneys’ fees. Regardless of association documents, Virginia Code § 55-516(F) allows for the reimbursement of attorney fees.
 
If an HOA places a lien on your home this does not pay off the debt and has no impact on your mortgage payments. The lien simply tells a future buyer that the HOA is owed money. As such, the lien may not become an issue until the property owner tries to sell, refinance or the association forecloses on the lien.  As you imagine, a future buyer would simply reduce the sales price by the amount of the lien because the new owner does not want to be responsible for the prior owner’s debt.
 
According to Virginia Code § 55-516, almost all HOAs have the power to place a lien on the homeowner’s property if homeowner becomes delinquent in paying the monthly fees and/or any special assessments. Before the HOA can file the lien, they must provide written notice to the property owner by certified mail, informing the property owner that a memorandum of lien will be filed in the circuit court clerk’s office of the applicable city or county. The notice shall be sent at least 10 days before the actual filing date of the memorandum of lien. A lien will usually attach automatically to that homeowner's property, typically as of the date the assessments became due.
 
As mentioned above the lien could be foreclosed upon regardless if you are up to date on your mortgage payments. In Virginia, an HOA may foreclose its lien nonjudicially, which means the foreclosure takes place without court supervision (See Va. Code § 55-516(I) and § 55-79.84(I)). If you have additional questions about these procedures, please contact Steven Krieger Law.

By Stephanie Minkoff
 
The short answer is, yes, thanks to recent changes by the Virginia legislature to the common law security deposit statute § 55-225.19.

There are two sets of laws that govern residential leases: common law (for private landlords unless they have multiple properties) or the Virginia Residential Landlord and Tenant Act (mainly for institutional landlords, buildings, or private landlords with several properties). The Virginia Residential Landlord and Tenant Act (“VRLTA”) always had a provision for attorneys' fees (see § 55-248.15:1), but tenants renting from private landlords who were exempt from the VRLTA could not get their attorneys’ fees recovered in a lawsuit to related to the return of a security deposit.
 
For reference, the VRLTA protects tenant’s apartments, rental homes, and federally subsidized housing in many different ways by imposing requirements on institutional and large residential landlords (defined as three or more properties subject to a residential lease). For more information on the rights of tenants in Virginia, please see our recent blog post on the subject.
 
Let’s say you have just moved out of your rental apartment and you now want to collect the security deposit you paid at the start of your lease. In Virginia, your landlord is obligated to return your security deposit with or without any deductions, which should be itemized with written notice, provided by the landlord, within 45 days after the termination of the lease (for both common law and VRTLA leases). 
 
There are several reasons that your landlord may decide to withhold payment, including outstanding rent payments (including late fees as specified in the rental agreement), money to cover unpaid utilities, excessive wear and tear on the unit, etc., The landlord must provide written notice of such payment obligations. Tenants should make sure landlords have updated address information where security deposits can be mailed and returned. In situations where there is more than one tenant subject to the rental agreement, the security deposit will be returned, less any deductions, with one check made payable to all tenants to a forwarding address provided (unless otherwise previously agreed to in writing). 
 
According to § 55-225.19, obligations in regards to security deposits by the landlord include:

• Itemized record of all deductions made by reason of the tenants noncompliance with § 55-225.4 during the preceding two years; and 
• Permit a tenant or his authorized agent or attorney to inspect such tenant's records of deductions at any time during normal business hours.
• Upon request by the landlord to a tenant to vacate, or within five days after receipt of notice by the landlord of the tenant's intent to vacate, the landlord shall provide written notice to the tenant of the tenant's right to be present at the landlord's inspection of the dwelling unit for the purpose of determining the amount of security deposit to be returned. If the tenant desires to be present when the landlord makes the inspection, he shall so advise the landlord in writing who, in turn, shall notify the tenant of the time and date of the inspection.
• Following the move-out inspection, the landlord shall provide the tenant with a written security deposit disposition statement including an itemized list of damages. If additional damages are discovered by the landlord after the security deposit disposition has been made, nothing herein shall be construed to preclude the landlord from recovery of such damages against the tenant, provided, however, that the tenant may present into evidence a copy of the move-out report to support the tenant's position that such additional damages did not exist at the time of the move-out inspection.
• If the tenant has any assignee or sublessee, the landlord shall be entitled to hold a security deposit from only one party in compliance with the provisions of this section.

 
If you feel that your landlord has not complied with his/her obligations and has not returned your deposit appropriately, and you are unable to resolve the dispute informally, you may decide to take legal action against your landlord. While you may consider handling the dispute yourself, inside or outside of court, hiring a professional with expertise related to the specific landlord and tenant laws in Virginia, doesn’t have to be a huge expense. Professional legal assistance can make the difference in obtaining a favorable outcome and with the recent legislative changes you are also able to request your attorneys’ fees associated with the litigation to recover your security deposit.
 
Feel free to contact Steven Krieger Law if we may be helpful in your security deposit dispute. 

By Brian Mittman

[English Version]

La Ley de Arrendadores e Inquilinos (VRLTA) protege los apartamentos, casas de alquiler y viviendas subsidiadas por el estado de diferentes maneras, como imponiendo requisitos a propietarios institucionales y residenciales, que se definen como tres o más propiedades sujetas a un contrato de arrendamiento). La VRLTA obliga al arrendador a hacerle mantenimiento a la propiedad, que incluye cumplir los códigos de vivienda y edificación; a mantener las instalaciones y las áreas comunes en condición buena y habitable; a asegurarse del buen funcionamiento de las instalaciones; a prevenir la acumulación de humedad y moho; a proveer recipientes para la basura; y a ofrecer suficiente agua caliente y aire acondicionado (§ 55-248.13).
 
Como inquilino en el Commonwealth de Virginia, es su responsabilidad conocer sus derechos y comprender cómo protegerse contra diferentes acciones del propietario.

Información obligatoria que el dueño debe dar
De acuerdo con la VRLTA, estos son algunos ejemplos de información que el arrendatario debe ofrecer:

• Cambios en la titularidad o administración de la propiedad y una lista completa de los agentes autorizados a actuar a nombre del propietario o compañía de administración (§ 55-248.12).
• Si detecta defectos en la mampostería (§ 55-248.12:2).
• Fecha en la que se aplicará pesticida en la propiedad (§ 55-248.13:3).
• La presencia de moho en la propiedad y qué pasos se están tomando para eliminarlo (§ 55-248.11:2).
• Si el propietario sabe que la propiedad era usada para elaborar metanfetamina y la propiedad no está limpia (§ 55-248.12:3).

Información sobre el depósito de garantía
Las cuestiones relacionadas con la seguridad están legisladas en Virginia bajo el código § 55-248.15:1. La VRLTA indica que un depósito de garantía no puede exceder el equivalente a dos meses de alquiler, y el propietario puede usarlo para cobrar meses y tasas sin pagar antes de devolverlo al inquilino.
 
El depósito de garantía debe ser devuelto al inquilino en no más de 45 días después de la terminación del contrato y de la devolución de la propiedad. Si el propietario se cobró algo del depósito de garantía, debe incluir una lista detallada de las deducciones al momento de devolverlo. Si el propietario no devuelve el depósito de garantía conforme a esta sección, el inquilino puede demandarlo y exigir incluso tasas de honorarios para el abogado, además del depósito de garantía.

Los inquilinos no pueden retener el alquiler 
Los residentes de Virginia no tienen el derecho a retener la renta de su arrendatario, pero las propiedades que no cumplan con los estándares de salud o de seguridad o en caso de incumplimiento de contrato, los inquilinos pueden tomar una serie de acciones específicas y pagar el alquiler en una cuenta de la corte, en lugar de la cuenta del propietario.
 
Cualquier inquilino de Virginia que quiera pagar la renta a la cuenta de la corte debería hablar con un abogado de bienes raíces antes de hacerlo. Un abogado puede asesorarlo en diferentes temas:

• los diferentes tipos de condiciones de la propiedad que habilitan la retención de la renta
• el tipo de notificación que debe proveer al propietario antes de retener la renta
• el plazo de tiempo que debe darle al propietario para arreglar el problema
• la cantidad de veces que puede retener la renta legalmente para resolver un problema en la propiedad
• la renta que puede retener legalmente
• las protecciones que tiene en contra de medidas de represalia del propietario, como desalojo

 
Un inquilino nunca debería retener la renta antes de realizar todo el debido proceso legal. Si no sigue el proceso, el propietario tiene el derecho de desalojar al inquilino.

Reglas de desalojo y terminación de contrato
En Virginia, los arrendatarios pueden solicitar el desalojo o la terminación de un contrato cuando el inquilino no cumple con el contrato. No solo cuando no paga la renta, como explica esta publicación. El proceso estándar para desalojar a un inquilino por un problema no relacionado con la falta de pago es darle al inquilino un aviso de 21 días para arreglar la violación según lo solicite el arrendatario. Si las violaciones no se resuelven en 21 días, la notificación indicará que el contrato se terminará nueve días después (en total, 30 días). Un inquilino con un historial de violaciones a condiciones del contrato podría enfrentar una terminación inmediata del contrato. Igualmente, si las acciones del inquilino se consideran como criminales.
 
También si el arrendatario no cumple materialmente con el acuerdo de alquiler o con una sección de la VRLTA, o si afecta materialmente la salud o seguridad del inquilino, este puede notificarle al arrendatario que el contrato terminará si no resuelve el problema dentro de los 21 días. Va. Código § 55-248.21.
 
Los inquilinos de Virginia tienen muchos derechos con la VRLTA, pero los propietarios también están protegidos por la ley. Los inquilinos que quieran cancelar un contrato antes de tiempo tendrán que negociarlo. Pero los inquilinos pierden sus derechos cuando se quedan en una propiedad y violan las condiciones del contrato o que no tienen intención de resolver los problemas.
 
Biografía del autor:
Brian Mittman es uno de los socios de Markhoff & Mittman, P.C. Tiene mucha experiencia en casos de compensación laboral, seguro social y lesiones personales. Para obtener más información, visite AyudaMeLegal.com.

By: Sharen Sellgren

Buyer’s remorse, or a right of rescission, is a way of voiding a contract.  It’s when you want things to go back to the status before a purchase.  Unfortunately, unless the vendor or retailer specifically offers a return policy or a sale’s contract allows you to terminate the contract, there are only a limited number of laws, like the federal and Virginia law, that provide you with this rescission or canceling right.

I. Federal Law  

Under federal law, The Federal Trade Commission (FTC) has established some safeguards to protect consumers from the consequences of hasty decisions. In particular situations, there is a three-day cooling-off period during which a consumer can cancel a contract.  For instance, consumers have the right to rescind contracts signed in their home when they are solicited by door-to-door salespeople. Additionally, consumers who purchase items at a temporary business location rented by a merchant on a short terms basis-- like at kiosks in a mall or at trade shows in convention centers -- have the same three-day “cooling-off” period (as do home-sale parties, and special sales held at hotels or restaurants).

But, consumers do not have a three day right to cancel under federal law when buying items purchased in a retail establishment, such as a store or auto dealership or when buying things like:

• Good that total less than $25
• Real estate
• Insurance
• Securities
• Farm equipment
• Motor vehicle
• Business or education goods (i.e., not personal or household goods)
• When the purchase is entirely by mail, online, telephone, or involves arts and crafts at a fair-type venue

If you do qualify for the three-day cooling-off period, then you need to give cancellation notice to the seller by mail, or hand delivery within three business days of the sale, with the following information:

• Your name, address, and contact information;
• Identifying information for the goods or services you're wishing to cancel (e.g., order number, account number, etc.); and
• An unequivocal statement that you are canceling the contract.

II.  Virginia Law

If you live in Virginia, there are a several statutes that allow you to cancel a contract or agreement:

• Home solicitation purchases (door-to-door salesmen) under Virginia Code § 59.1-21.3:
  • You can cancel the contract for 3 days after purchase.
  • You must give written notice of cancellation to the seller at the address stated in the agreement or offer to purchase.

 

• Computer Transactions under Virginia Code § 59.1-508.2:
  • You may cancel your purchase of computer software, online databases, software access contracts or e-books, if there is a material breach that has not been cured or waived.
  • You may give notice of cancellation in any way reasonable under the circumstances.

 

• Travel Clubs under Virginia Code § 59.1-448:
  • If you join a travel club, which is a group of business owners in the travel industry that join together and put together wholesale travel packages for an upfront cost, you may cancel the membership within seven days of purchase.
  • You may cancel by delivery, telegram, or mail with proper address and prepaid postage.

 

• Camping Membership Virginia Code § 59.1-326:
  • If you join a camping membership (a private campground open only to members who typically pay a one-time membership fee and annual dues for the right to use the campground), you may cancel the membership within seven days from the date of purchase.
  • You may cancel by: mailing notice of your intent to cancel by certified US Mail to the membership camping operator at the address shown in the membership camping contract.

 

• Health Club Virginia Code § 59.1-297:
  • A health club membership may be cancelled within three days after purchase.
  • If a health club closes or relocates its facilities, a buyer may cancel the contract if the club fails to provide comparable alternate facilities within five driving miles of the location designated in the health club contract.
  • A contract may be cancelled if you are physically unable to use a substantial portion of the services for 30 or more consecutive days.
  • You may cancel your membership by:
    • notifying the health club of cancellation in writing, by certified mail return receipt requested, or personal delivery to the address of the health club as specified in the health club contract.

 

• Pay Day Loan Virginia Code § 6.2-1816:
  • You (the borrower), have the right to cancel a loan at any time before the close of business on the next business day following the date that the loan was issued.
  • You may cancel by returning the cash or other good funds instrument (i.e., a certified check, cashier's check, money order or, if the licensee is equipped to handle such payments, payment by credit card) of the amount advanced, back to the lender.

 

• Motor Vehicle Title Loan Virginia Code § 6.2-2215:
  • You (the borrower), have the right to cancel the loan at any time before the close of business on the next business day following the day the loan agreement is executed.
  • You may cancel by by returning the original loan proceeds check to or paying to the licensee, in the form of cash or other good funds instrument (i.e., a certified check, cashier's check, money order or, if the licensee is equipped to handle and willing to accept such payments, payment by credit card, prepaid card, or debit card), the loan proceeds.

 

• Refund Anticipation Loan Virginia Code § 6.2-2503:
  • You (the borrower), may cancel the loan on or before the close of business on the next day of business.
  • You may cancel by either returning the original check issued for the loan or providing the amount of the loan in cash to the lender or the facilitator.

 

• Credit Services Businesses under Virginia Code § 59.1-335.8:
  • If you bought services to improve your credit, you have three days to cancel the services.
  • To cancel the contract you should mail or deliver a signed and dated copy of the cancellation notice.

 

• Fire Insurance Virginia Code § 38.2-2105:
  • You may cancel your fire insurance at any time after your purchase.
  • You may request a cancellation to the insurance company (there is no specified cancellation method).

 

• Virginia Property under Virginia Code § 55-509.4:
  • You may cancel a contract for property (that is not a cooperative or condominium):
    • within three days after the signing of the contract, if the purchaser is notified on or before the contract was signed, that the association disclosure packet will not be available;
    • within three days after receiving the association disclosure packet (or notice that the disclosure packet will not be available), you may cancel by hand delivery, electronic means, or by mail with a receipt; or
    • within six days after the postmark date if the association disclosure packet  is sent to the purchaser (or notice that the association disclosure packet will not be available), you may cancel by United States mail.
    • The purchaser may also cancel the contract at any time prior to settlement if the purchaser has not been notified that the association disclosure packet will not be available and the association disclosure packet is not delivered to the purchaser.
  • You may cancel the contract by:
    • Hand delivery;
    • United States mail, postage prepaid, provided the sender retains sufficient proof of mailing, which may be either a United States postal certificate of mailing or a certificate of service prepared by the sender confirming such mailing;
    • Electronic means provided the sender retains sufficient proof of the electronic delivery, which may be an electronic receipt of delivery, a confirmation that the notice was sent by facsimile, or a certificate of service prepared by the sender confirming the electronic delivery; or
    • Overnight delivery using a commercial service or the United States Postal Service

• Condominium under Virginia code § 55-79.97:
  • You may cancel the purchase of a condominium unit:
    • within three days after signing the contract if you are notified on or before the contract was signed that the resale certificate will not be available; or
    • within three days after receiving the resale certificate (or notice that the resale certificate will not be available) delivered by hand, electronic means, or mail, and a receipt is obtained; or
    • within six days after the postmark date of the resale certificate (or notice that the resale certificate will not be available) is sent to you by U.S. mail.
    • You may also cancel the contract at any time prior to settlement if you have not been notified that the resale certificate will not be available and the resale certificate is not delivered to you.
    • A resale certificate is a a set of documents you receive within 7 – 10 days after making an offer on a unit in a condominium building. (It includes the Homeowners Association budget, the Covenants, Conditions & Restrictions (CC&Rs) for the building, and a copy of the minutes of the association's last meeting.)
  • Cancellation may be made by:
    • Hand delivery;
    • United States mail, postage prepaid, provided the sender retains sufficient proof of mailing, which may be either a United States postal certificate of mailing or a certificate of service prepared by the sender confirming such mailing;
    • Electronic means provided the sender retains sufficient proof of the electronic delivery, which may be an electronic receipt of delivery, a confirmation that the notice was sent by facsimile, or a certificate of service prepared by the sender confirming the electronic delivery; or
    • Overnight delivery.

• Real Estate Cooperative Virginia Code § 55-483:  
  • You cancel an interest in a real estate cooperative within ten days of the purchase.
  • To cancel you may:
    • hand deliver notice to the offeror, or
    • mail notice by prepaid United States mail, to the offeror or to his agent for service of process.

• Real Estate Time Share under Virginia Code § 55-376:
  • You have seven days to cancel a purchase of a time share.
  • You can cancel the contract by either:
    • hand-delivering the notice to the developer at its principal office or at the project, or
    • mailing the notice by certified United States mail, return receipt requested, to the developer or its agent designated in the contract.  Notice sent by certified mail shall be effective on the date postmarked.

 

• Virginia’s Lemon Law: ​In addition, Virginia has the Virginia Motor Vehicle Warranty Enforcement Act (Virginia’s “Lemon Law”).  A car is classified as a “lemon” if it has been repaired three times or more since its purchase or if it has been repaired once for a serious safety defect.  For more information, please see our blog post here. The Lemon Law requires that the dealer accept the vehicle for a refund or exchange or the purchaser may sue the dealer for the sales price and any other incurred damages (e.g., cost of repairs and attorney fees).

III.  Conclusion
Although federal law has a “three-day rule,” or a “right of rescission” to cancel a contract, the law only applies in limited situations.  Although Virginia laws expand the applicability of when you can cancel a contract, these laws also apply in only few, very specific situations (i.e., property purchases, health club memberships, and certain loans).  In general, there aren’t many instances when you can return a purchase without a sales contract allowing you to make the return, so buyer beware!

By Brian Mittman 

[en español]

The Virginia Residential Landlord and Tenant Act (“VRLTA”) protects tenant’s apartments, rental homes, and federally subsidized housing in many different ways by imposing requirements on institutional and large residential landlords (defined as three or more properties subject to a residential lease). The VRLTA requires the landlord to maintain the property, which includes complying with housing and building codes, keeping the premises in fit and habitable condition, maintaining the common areas in a clean and safe condition, keeping the utilities property working, preventing the accumulation of moisture and mold, providing containers for trash, and supplying sufficient running and hot water and air conditioning (§ 55-248.13).
 
As a tenant in the Commonwealth of Virginia, it is your responsibility to know your rights and understand how you can protect yourself from landlord actions in various situations.

Required Landlord Disclosures

​According to the VRLTA, here are some examples of disclosures landlords are required to make:

• Any changes in property ownership or management and a full list of agents who are authorized to act on behalf of the landlord or management company (§ 55-248.12);
• When the landlord has actual knowledge that defective drywall was present in the property and was not remediated (§ 55-248.12:2);
• When pesticides will be used on the property (§ 55-248.13:3).
• The presence of mold in a residential property and what steps are being taken to remove the mold (§ 55-248.11:2); and
• If the landlord has actual knowledge that the property was used to manufacture methamphetamine and has not been cleaned up property (§ 55-248.12:3).

Security Deposit Information

Issues related to a security are codified in Va. Code § 55-248.15:1. The VRLTA mandates that a security deposit cannot exceed the equivalent of two months rent for a property, and the landlord is allowed to recover unpaid rent and fees for damages caused by the tenant before returning a security deposit.
 
The security deposit must be returned to the tenant no longer than 45 days after the termination of the tenancy and possession has been returned to the landlord. If the landlord has taken any fees from the security deposit, then an itemized list of all deductions must be included with the security deposit when returned to the tenant. If the landlord does not return the security deposit in compliance with this section, the tenant may sue the landlord and request reasonable attorney’s fees in addition to the security deposit.

Tenant's Cannot Withhold Rent

Virginia residents do not have the right to withhold rent from the landlord, but for properties that do not meet health or safety standards or for material breaches of the lease agreement, tenants are able to take specific steps and then pay their rent into the court’s escrow account instead of the landlord.
 
Any Virginia tenant who intends to pay rent into the court’s escrow account should speak to a real estate attorney before doing so. An attorney will advise you on:

• The various property condition situations that allow for legal rent withholding
• The type of notice you must provide to the landlord before withholding rent
• The time frame you must give the landlord to fix the problem
• The number of times you can legally withhold rent to get a property issue solved
• How much rent you can legally withhold
• The protections you have against landlord retaliation measures such as eviction

 
A tenant should never withhold rent for property conditions without first going through the proper legal process. If the process is not followed, a landlord has the right to evict tenants who withhold rent.

Termination and Eviction Rules

​In Virginia, a landlord may file for termination of a lease when any breach of the lease terms occurs – not just failing to pay rent, which is explained in this blog post. The standard process for evicting a tenant for a non-payment issue requires the landlord to provide the tenant with a 21 day notice to cure or correct the violation to the satisfaction of the landlord. If the violation is not resolved in 21 days, then the notice usually states that the lease will terminate nine days later (on day 30). A tenant who has a recorded history of violating conditions of the lease could be hit with an unconditional termination of the lease notice. Similarly, if the actions of the tenant were deemed as criminal, then a termination notice could take effect immediately.
 
Similarly, if the landlord is materially not complying with the rental agreement, a section of the VRLTA, or materially affecting the tenant’s health or safety, the tenant may give the landlord a notice saying that the lease will terminate if the issue is not resolved within 21 days. Va. Code § 55-248.21.
 
Virginia residential tenants have a lot of rights under the VRLTA, but landlords are also protected under Virginia law. Tenants who want to terminate a lease that is in effect before its term is up will have to negotiate that termination with the landlord. But tenants often give up their rights to stay in a property when they continually violate the terms of the lease and are not interested in solving issues with the landlord.

If you need additional information, please contact Steven Krieger Law for a consultation. 

Brian Mittman is a managing partner at Markhoff & Mittman, P.C. He is experienced in workers comp, social security and personal injury law. Visit TheDisabilityGuys.com for more information.

By Katarina Nguyen

A protection order is the same thing as a restraining order in that both are designed to protect you against an abuser. In DC, a protection order requires that the person who is subject to the order, the respondent, stay away from you, the petitioner. However, a protection order can provide many other types of protection and relief, as explained in Section II below. You can obtain a protection order if the “respondent has committed or threatened to commit one or more criminal offenses against [you]” (see DC Code Section 16-1003(a)). There is no filing fee to request and obtain a protection order.

I. Types of Protection Orders

DC has three types of protection orders: the first is a Civil Protection Order, which is used when the person threatening or committing a crime against you is a family member, roommate, someone you dated or had a sexual relationship with, someone with whom you share a child, spouse, ex-spouse, or someone who dated your current boyfriend, girlfriend, or spouse (see DC Code Section 16-1001(6)-(9), (12), and DC Code Section 16-1003(a)). This type of protection order is also used in cases of stalking, sexual assault, and sexual abuse. A Civil Protection Order can last up to one year.

The second type is a Temporary Protection Order, which offers much of the same protections of a Civil Protection Order, but only lasts for up to two weeks (see DC Code Section 16-1004(b)). Because it is granted ex parte, or without the abuser present, this order is meant as a placeholder while you schedule and hold a hearing for the Civil Protection Order (though if the respondent fails to show up to the hearing, then the Civil Protection Order can be granted ex parte as well).
 
The final type is an Emergency Temporary Protection Order, which is similar to a Temporary Protection Order, except that it lasts for only five days (see DC Police’s Guide on Protection Orders). Only a police officer and an advocate from Survivors and Advocates for Empowerment (SAFE) can request this type of protection order.

II. How a Protection Order Protects You

A protection order provides a variety of protections (see DC Code Section 16-1005(c)). The respondent can be ordered to:

• Give up possession of any firearms, restricted from carrying, using, or purchasing a firearm;
• Stop committing or threatening to commit crimes against you and any other person named in the petition ("protected person");
• Stay away from you and any other protected person, including at specific locations
• Refrain from contacting with you and any other protected person;
• Refrain from entering the home, or vacate the home if you both live together and you own/rent or jointly own/rent the home;
• Participate in psychiatric or medical treatment or counseling for, parenting, drugs, alcohol, domestic violence, and so on;
• Pay your attorneys' fees and court costs;
• Return personal property owned by you alone or jointly with the respondent, including keys;
• Provide you with financial assistance or spousal support for your expenses, including rent, mortgage, and bills;
• Pay you child support;
• Keep you and/or your children on his/her health insurance plan; and/or

• Reimburse you for property damage, medical costs, and other expenses you incurred due to the respondent's actions.

 
In addition to the above, the Court could also grant the following relief to the petitioner:

• Grant you temporary custody of the children and, assuming the respondent shows that visitation will not hurt the children's emotional development or endanger them (see DC Code Section 16-1005(c-1)), arrange for a visitation schedule that protects your safety;
• Order the police to assist in enforcing the terms of the order, such as by having them escort you to collect personal belongings or to collect the keys from the respondent for you;
• Grant you custody of a pet that belongs to you, the respondent, or lives in either household; and/or

• Order any other relief that you show you need to protect you from harm.

III. Filing for a Protection Order

A. Eligibility

To qualify for a protection order in DC, you must live or work in DC and at least one incident must have occurred in DC (see DC Code Section 16-1006). A protection order granted in DC is effective in all states in accordance with the U.S. Violence Against Women Act, which applies to all protective orders, regardless of whether the petitioner is a man or woman. Depending on the state, you may have to register your DC protection order with the court to make enforcement easier for the state. However, federal law requires the states to uphold a DC protection order regardless of whether it has been registered. If you move, you should also notify the DC court of your new address.
 
The time limit for filing for a protection order is two years. However, it is recommended that you file as soon as possible as judges view a long delay in filing less favorably. This is because the court will think that you were not really in danger, or else you no longer believed you were in danger, if you waited too long after the threat or crime. The judge will ask you why you waited so long after receiving the threat or injury to file for a protection order. If the judge is not satisfied with your reasons, he or she is more likely to deny your petition.

B. Evidence Gathering

When seeking a protection order, be sure to have the abuser's work and home address, phone number, a physical description, and any aliases he or she uses. Also bring any evidence of harassment, stalking, or abuse inflicted upon or threats made to you or your children that you collected, such as police reports, hospital records, pictures, journals, notes, letters, emails, text messages, recordings, 911 calls, damaged clothing or objects, and so on. You should also contact any witnesses and ask if they would be willing to testify on your behalf at the Civil Protection Order hearing.
 
If seeking temporary custody of a child, have with you the addresses the child has lived at for the past five years and with whom the child lived at each address. You will also need to know if there is any pending court case concerning custody of the child and whether you know of any other person besides yourself or the respondent who claims to have custody of the child.
 
If seeking temporary child support from the respondent, you must bring proof of your income and the respondent's income to the Civil Protection Order hearing. This includes two recent pay stubs, tax returns for the last two years, or a completed financial statement. If there are any other child support orders that affect you or the respondent, then bring copies of them as well.
 
If seeking to have the respondent vacate your home, you must bring the lease or deed to the Civil Protection Order hearing. In addition, if seeking to have the respondent reimburse you for medical costs, property damage, and other expenses you incurred due to his or her actions, bring those bills, invoices, receipts, or estimates to the hearing.

C. Starting the Process - The Temporary Protection Order

To file for a protection order, you must go to the Domestic Violence Intake Center and fill out the Petition and Affidavit for Civil Protection Order form (available here). Because the filing process can take several hours, it is recommended you have plenty of time to arrive at court before it closes at 4:00 pm. If you have an emergency situation, including if the Domestic Violence Intake Center's offices are closed, you can contact the Domestic Violence Unit at Police Headquarters.
 
If filing with the Domestic Violence Intake Center, you can choose whether to file for just a Civil Protection Order or also a Temporary Protection Order, which must be filed with the Civil Protection Order. An intake officer will assist with filling out the paperwork. When writing about the incidents, use descriptive words and include as much details, times, and dates as possible. If you and the respondent share children who live with you, you can also file for child support. When you are finished with the paperwork, a court advocate will talk with you about the hearing and can help provide other resources, including counseling, emergency funds, and shelter housing.
 
If filing for a Temporary Protection Order, you will have a hearing in front of a judge that day. You must show the judge that you are “is immediately endangered by the respondent” (see DC Code Section 16-1004(b)(1)). For instance, if being threatened with death or bodily harm, that would be considered immediate danger. In cases of stalking, if the behavior is continuous or escalates in severity, this would constitute immediate danger. If you have a message from the respondent saying he or she is coming to find you, combined with a threat of committing a crime against you, that could also be a case of immediate danger. If granted, the Temporary Protection Order will remain in effect until the Civil Protection Order hearing, or up to two weeks. If denied, you will still have the Civil Protection Order hearing scheduled.

D. Service

Regardless of whether a Temporary Protection Order is granted, during the period between filing and the Civil Protection Order hearing, the respondent must be served. Service, or delivering the petition to the respondent, cannot be done by you or any other party to the petition (see DC Code Section 16-1004(d)). You can arrange to have a non-party person who is 18 years of age or older to deliver the petition to the respondent. This person must sign a Return of Service confirming the petition was delivered, which you must bring to the hearing. You can also hire a private process server or request that the police serve the petition upon the respondent.

E. The Civil Protection Order Hearing

At the Civil Protection Order hearing, if the respondent does not appear at court and you have proof that the respondent was properly served, then you can obtain a default ruling if the judge finds there is reasonable belief that the harm you stated in the petition occurred. However, if the judge finds that the respondent was not properly served, you can ask to continue the case to give you time to serve the respondent again. If you have a Temporary Protection Order, you can also ask that it be extended until the continued hearing date.
 
If the respondent does appear, there is a negotiation requirement in DC where you meet with an attorney negotiator to see if you and the respondent can reach an agreement about the Civil Protection Order, such as if the respondent consents to the protection order. If an agreement is reached, the judge will review the agreement and make sure that all parties understand the details of the agreement. The judge will then sign the agreement, which will last for one year. On the other hand, if no agreement is reached during negotiations, you will present your evidence and any witnesses, including yourself, of the injuries or threats, and the respondent will submit evidence in defense. The judge will then decide whether to grant the Civil Protection Order if there is good cause to believe that the respondent committed or threatened to commit a prohibited act against you. If the judge states that a decision to grant or deny your petition will be made at a later date, be sure to ask that the Temporary Protection Order be extended until such time.

F. After the Hearing

If the judge denies your petition for a protection order, you should contact a domestic violence resource center to get advice on staying safe. You can also reapply for a protection order if a new violation is committed or a threat to commit a crime is made against you. You may also consider appealing the judge's decision.
 
If the judge grants your Civil Protection Order, you should review the order and make sure there are no mistakes (if there are, see the clerk about correcting the order). Then make several copies, one to keep with you and the others to give to others, such as the front desk of your workplace, your children's school or daycare, sympathetic neighbors, and so on. Include a picture of the respondent with the copy.
 
While the protection order is in effect, if you are a renter, you can ask your landlord to change the locks if you make the request in writing (see DC Code Section 42-3505.08). If the respondent is a tenant in your apartment, you will have to include a copy of the protection order that states the respondent must stay away from you. The landlord will have five business days to change the locks to all entrance doors to your apartment. While the landlord pays the initial cost, you may have to reimburse the landlord if, within 45 days, you receive a bill with proof of the cost. There may also be an administrative fee associated with the lock change that you may have to pay as well if, for instance, your lease provides that the landlord can change the locks upon request for a fee.

IV. Violations of the Protection Order

If you discover that the abuser has violated the protection order, contact the police and provide any evidence of the violation. This evidence can include a journal or log, voicemail messages, letters or envelopes, cell phone bills, emails, and pictures. If there are witnesses to the violation, ask if they would be willing to testify at a hearing. If you were injured as a result of the violation, go to the hospital immediately afterwards, inform the staff that you have a protection order, and take pictures of the injuries. One could be held in contempt of court for violating a protection order, which is punishable by a $1,000 fine and/or up to 180 days imprisonment (see DC Code Section 16-1005(f)-(h)).
 
You can also notify the court of a violation and bring proceedings against the respondent yourself by filing a motion to adjudicate civil contempt or a motion to adjudicate criminal contempt. You would file a motion for the former if the respondent did something such as failing to pay ordered child support. You would file a motion for the latter if the respondent harmed or threatened to harm you.

V. Extending, Modifying, or Vacating the Protection Order

Prior to the expiration of the protection order, you can file a motion to extend the protection order (see DC Code Section 16-1005(d)). At the same time, the respondent (and you) can file a motion to vacate the protection order if he or she can argue there is good cause as well. In addition, you can file a motion to change the terms of the protection order. If filing any of these types of motions, you must show “good cause” to the court to extend, modify, or vacate the protection order. Any motion you file must be served on the respondent in the manner explained previously.

VI. Resources

For additional help, see the DC Police's Guide on Protection Orders and Pamphlet, the DC Coalition Against Domestic Violence and Women Empowered Against Violence Pamphlet, the DC Courts Guide on Domestic Violence Matters, and Womens Law Guide on Civil Protection Orders.
 
If you need assistance filing a protection order or representing you in court, please feel free to contact us for a free phone consultation.