By Charles Michael Fulton

Many people in the metro-DC area have security clearances. When a legal issue arises, holders of security clearances are rightfully concerned about the impact on their security clearance and the corresponding impact on their careers. Like most legal questions, the answer is it depends—that is to say, it depends on your particular legal issue and the underlying facts. To give you some background on how we’d answer your question, this blog post will discuss the relevant portions of the Adjudicative Guidelines for Determining Eligibility for Access to Classified Information, 32 C.F.R. § 147 (2021), (the “Adjudicative Guidelines”).

The Adjudicative Guidelines list thirteen Guidelines outlining areas of concern for agency supervisors to apply to both initial and continuing eligibility for access to classified information. Each Guideline is assigned a letter from A to M. For example, the first three Guidelines, A to C, along with Guideline L, deal with allegiance to the United States and foreign influences, including in activities outside of employment—generally not areas with which our clients are concerned. See 32 C.F.R. § 147.3–.5, .14 (2021).

For a civil matter, such as a lawsuit over a debt or a landlord/tenant dispute that ends up in litigation, the most relevant guideline is Guideline F, which deals with money concerns. See 32 C.F.R. § 147.8 (2021). Guideline F instructs supervisors to consider, among other things, an applicant’s history of not fulfilling financial obligations and an inability or unwillingness to satisfy debts. 32 C.F.R. § 147.8(b)(1),(3) (2021).

As an example, a debt collector sues a client for a debt that the client had long forgotten, never new existed, or was not actually the client’s obligation. This would likely be a concern for a supervisor in a security clearance review because it is an indicator that the client has a history of not fulfilling financial obligations.
As another example, a client failed to pay the full amount of rent (and late fees) due on his or her previous rental unit. This would also likely be a concern for a supervisor in a security clearance review because it is an indicator that the client has a history of not fulfilling financial obligations.

Fortunately, Guideline F provides some instructions on facts that could reduce concern for failing to pay debts. Specifically, Guideline F instructs supervisors to consider whether the issue happened a long time ago; the issue was isolated; the issue resulted from circumstance beyond the client’s control, due to extenuating circumstances such as loss of a job; and whether the client is actively working to resolve the issue or making an effort to repay his or her debts. 32 C.F.R. § 147.8(c)(1)–(4),(6) (2021).

To reduce concern for the first example, the client could point out that the debt arose a long time ago, and that the client has no other such debts on his or her record. Of course, the later would require the client to investigate whether the client did, indeed, have any other such outstanding debts—a great way to do this would be for the client to request several credit reports and carefully review the results.

To reduce concern for the example using unpaid rent, the client could point out that the unpaid rent was the result of unexpected circumstances, such as the loss of a job or, perhaps, the loss of a spouse or co-tenant. Further, the client could point to the fact that, hopefully, the client was actively trying to negotiate with his or her former landlord to reach a mutually agreeable settlement arrangement to resolve the debt.

If these examples do not answer your questions about how a civil claim you have, or someone has a claim against you that may affect your security clearance, please contact Steven Krieger Law, PLLC, for a consultation on the matter.

This blog post on how a civil matter may affect a security clearance is part of a series of blog posts on how legal matters may affect a security clearance. For information on how a family law matter may affect your security clearance, click here (coming soon). For information on how a criminal matter may affect your security clearance, click here (coming soon).

By Susann Nordvik

It’s a story almost as old as time, or at least as old as high occupancy dwellings:  Renter signs lease, renter pays security deposit, renter moves out, renter loses security deposit to a host of nebulous, if nonetheless predictable, “expenses” charged back by the landlord after the fact.  This theme is so persistent that many tenants actually plan for the inevitable loss of their security deposit.  Other tenants who are somewhat more optimistic have gone to extreme measures to try and recoup as much of the deposit as reasonably possible, including hiring detailing services for the white glove and cotton swab treatment of their former home.

Washington D.C., however, has implemented safeguards to protect the tenant’s right to recover security deposits.  In 1955, the District enacted Title 14, Section 309 of the District of Columbia Municipal Regulations to prevent the renting public from losing those hefty deposits arbitrarily.  The regulation provides that a landlord must provide notice in writing of the intent to withhold any portion of the security deposit to pay for repairs or other expenses within forty-five (45) days of the termination of the tenancy.  Once this notice is provided, the landlord then has thirty (30) days to effectuate the claimed repairs and tender a refund of the unused amount to the tenant with an itemized statement of each expense to which the deposit funds were applied. 

This modest provision was intended to protect the tenant from random charges and surprises.  In many cases landlords complied with Section 309 in one form or another, and landlord/tenant relationships evolved accordingly.  For some less scrupulous landowners, however, Section 309 marked the beginning of an arms race-like effort to avoid returning deposits.  This eventually became such an obvious concern that in 2012, the District amended Section 309 include subsection 309.5, which details the consequences of a landlord’s failure to comply with the notice and refund requirements.  In the garden variety situation, this would render the landlord responsible for the return of amounts wrongfully withheld, plus any interest accrued during the tenant’s occupancy of a year or more.  Most notably, the new provision also contained a “treble damages” remedy in the event that the tenant was able to establish that the landlord acted in bad faith by refusing to return some or all of the tenant’s deposit.  Another regulation requires landlords who hold a security deposit for one year or more must keep the funds in and interest-bearing account and then return the bank paid interest to the tenant with the remainder of the security deposit.  See 14 DCMR § 311.2.

As an example, let’s say that Jack and Jill rented a two-bedroom apartment for $1500 per month and paid a security deposit of $1500.  They paid the rent timely every month for 12 consecutive months and then moved out.  Jack and Jill would then be entitled to a return of their deposit plus interest within 45 days (unless there was damage, which would give the landlord an additional 30 days to complete the repair and refund any remaining portion of the security deposit).  However, during the final inspection, the landlord noticed that Jack had ripped up some of the tile on the floor in the bathroom, and got an estimate from Good Buddy for the repair at $250.  The landlord then sends Jack a written notice that he will be withholding approximately $250 for the repairs to the bathroom floor.  The landlord promptly has the repair completed, and within 30 days of the written notice to Jack and Jill, the landlord returns $1250, plus interest, and a receipt for the floor repair.
 
But what happens if there was actually no tile damage at the time of move out?  Jack and Jill could be expected to be quite annoyed by the idea of having to be responsible for a $250 repair that was unnecessary, or based on conduct that took place after they left.  In such a situation, Jack and Jill may be able to recoup their lost $250, plus an additional $500 if they can prove that the landlord charged them for non-existent floor damage. 

This is not necessarily as simple as it may seem at first blush.  The text of the regulation describes what “bad faith” means for the purpose of claiming treble damages:

For the purpose of this sub-paragraph, the term “bad faith” means and frivolous or unfounded refusal to return a security deposit, as required by law, that is motivated by a fraudulent, deceptive, misleading, dishonest, or unreasonably self-serving purpose and not by simple negligence, bad judgment, or an honest belief in the course of action taken. 14 DCMR § 309.5(2).

Based on this definition, it would be plausible to obtain treble damages if Jack and Jill can prove that there was never any floor damage prior to vacating the apartment. Moreover, if Jack and Jill can show that the estimate obtained by the landlord was falsified by Good Buddy, a long-time friend of the landlord, this goes a long way to proving that the whole claim as a sham to enable the landlord to keep $250 of the deposit.  However, the landlord may not be found to have acted in bad faith if after his real estate broker conducted the final inspection, the cleaning crew damaged the floor and tried to pass it off as a circumstance caused by Jack and Jill.  The landlord may have reasonably believed the story of his staff rather than his former tenant. 

Additionally, the ability to recover treble damages may also be reduced by a lack of evidence provided to the civil judge or the administrative law judge (“ALJ”) (if a claim is made to the Rental Housing Commission).  This was the case in Bell v. Pourbabai, RH-TP-13-30, 448 (OAH Apr. 15, 2015). 

Bell, together with seven others, rented a single-family residence for $10,000 per month and paid a $10,000 security deposit.  Bell claimed that after more than a year of tenancy, the residents decided not to renew the lease, and although the premises were left in nearly as good a condition as they found it (with some exceptions), the landlord refused to return any portion of the $10,000 deposit.  The tenants filed a petition with the Rental Housing Commission.  After a full evidentiary hearing, the ALJ found that although some amounts of the deposit were improperly withheld, there was an insufficient showing of the landlord’s state of mind in refusing to return the deposit, and consequently, Bell was not entitled to treble damages. The ALJ stated:

In this case, there was no evidence to allow me to consider Housing Provider’s state of mind.  The testimony and evidence did indicate that the Housing Provider was at times intimidating and occasionally threatened the tenants unnecessarily, however, a totality of the evidence presented indicates that Housing Provider’s improper deductions were the result of bad judgment and poor management.  Moreover . . . it also appears that . . . he may have received improper advice from his attorneys.

It cannot be overstated that renting is a costly endeavor for both landlords and tenants.  Therefore, the most important thing for either a tenant or a landlord to do is to document everything.  Photographs or video of both the pre-move in and post-move out inspections will protect both parties from damage claims.  Documentation should include any appliances that were included in the rental, as well as fireplaces, the condition of walls, and any surfaces or fixtures that have been subjected to normal wear and tear.  If maintenance or repairs are an obligation under the lease, then the responsible party should document all such efforts and copy the other party with any relevant estimates or receipts.  Any requests or communication between landlord and tenant should be memorialized in writing, at least as a follow up or recap.  By doing so, it may be possible to avoid a significant percentage of conflict and miscommunication.  At the same time, if your landlord has a bad intent, you may be able to unmask fraud or deception through your showing of consistent care and effort.

Consulting an attorney experienced in bad faith cases may also help guide you along the way.  If you are a tenant, your attorney can help you understand the level of evidence necessary to develop your unique situation in the best possible way.  If you are a landlord, an experienced attorney can assist you in navigating your obligations and avoid costly errors. Feel free to contact Steven Krieger Law, if you need any assistance

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: Justin Ewaniszyk

Note: If you're a landlord or tenant in Virginia, check out our Virginia blog post The Eviction Process in Virginia: A Guide for Landlords and Tenants.

In Washington DC, both Tenant and Landlords have certain rights and obligations that they should know about before and during the eviction process. Those rights are governed by D.C. Code §42–3505.01, and it’s important for both Landlords and Tenants to understand the eviction procedure or the court may not grant your request. In other words, a Landlord cannot simply change the locks, turn off the utilities, remove Tenant’s belongings, or physically remove Tenant from the property without proper cause, notice, and a court order evicting Tenant.[1] Similarly, a Tenant may not simply withhold rent.

Step 1: Provide Notice to Tenant(s)
There are many possible reasons to evict a Tenant, but the two most common reasons are: 1) failure to pay rent; and/or 2) failure to comply with the obligations under the lease.[2]  If a Landlord believes a Tenant has failed to pay rent, or violated a portion the lease, then Landlord must send Tenant a "Notice to Cure or Vacate."[3] If Tenant does not correct the issue, if the issue is correctable, then Landlord may file for eviction. (Note: A Landlord may not evict a Tenant whose lease has expired, so long as that Tenant continues to pay rent.)

• Failure to Pay Rent: If Tenant fails to pay rent, Tenant must be provided with a 30-day notice to pay the rent in full by Landlord, unless this right to notice was waived in the lease agreement. If Tenant fails to make the payment on or before the 30 days expire, Landlord may bring an eviction action in court.
• Failure to Comply with Correctable Obligations under the Lease: If Tenant violates a portion of the lease agreement, Landlord must provide Tenant with a 30-day notice to fix the violation. The notice must adequately describe the violation and cannot be waived by Tenant in the lease agreement. If Tenant fails to fix the violation on or before the 30-days expire, Landlord may bring an eviction action in court.
• Failure to Comply with Non-Correctable Obligation under the Lease: Since Tenant is unable to cure a lease violation and the violation is material to the lease, Landlord may initiate the eviction proceedings.[4]

Step 2: Service of Eviction
If Tenant fails to pay the overdue rent or correct the lease violation after the 30 days after the notice was sent, Landlord may file an eviction lawsuit in court. Landlord must then serve Tenant with a “Complaint” which specifies a time and date for the initial eviction hearing.[5] If Tenant fails to show up for the initial court date, and a judgement is rendered for Landlord, Landlord is required to file a “Notice to Tenant of Payment Required to Avoid Eviction” form with the court indicating the amount of money the judgement was entered for, which will then be sent to Tenant by the court.  Tenant is able to avoid the eviction if Tenant is able to pay the full amount owed at any time up until the U.S. Marshall arrives to remove Tenant.  The final notice that Tenant should receive is the official eviction notice called a “Writ of Eviction” and it is issued after the court has ordered a “judgement for possession” to Landlord. However, if Tenant and Landlord show up at the date and time specified in the “Complaint”, then the court will hear them both regarding the eviction.

Step 3: Court

• Initial Hearing:
  1. Roll Call: At the initial hearing, which is dated in the complaint, the judge will call all the cases to make sure all parties are present. If a Tenant fails to show up at this initial hearing, the court will enter a default judgement for Landlord, which means Landlord is given possession of the property by the court. If Landlord fails to show up for the roll call, the court will dismiss the case, meaning that Landlord will have to refile the suit against Tenant if Landlord still wants an eviction.
  2. Opportunity to Settle: After the roll call, the judge will dismiss the room to give the parties an opportunity to settle. The parties, if they chose to settle may either: (a) agree to a “Consent Judgment,” which means that Landlord gets a financial judgment against Tenant, but not a judgment for possession, Landlord cannot use this to evict Tenant; or (b) sign a “Settlement Agreement,” which is a separate agreement between the parties to settle the issue, but does not result in a judgement for Landlord. Both options must be approved by the court when court resumes, and ensure that Tenant will pay the rent owed or correct the lease violation by an agreed upon date.
  3. Unable to Settle: If the parties are unable to settle the matter, the judge will then call forward the parties to decide if the case deserves a trial. If there is a genuine dispute about the facts of the case and Tenant requests a trial, it is likely that the judge will order a trial date for the parties to attend.
• Trial: If the parties are unable to resolve the dispute and the judge believes a trial is appropriate, a trial date will be set and each party will have an opportunity to present their evidence (documents and verbal testimony) and the judge will resolve the dispute for the parties.
• Judgment: If Tenant (a) doesn’t show up to initial hearing, thus giving a default judgement to the landlord, (b) breaks the consent agreement, or (c) loses at trial, then the court will enter a judgement for possession to Landlord, will issue a writ of eviction, and will enter a financial judgment against Tenant if appropriate.  After the judgement is made for Landlord, the actual process of removal will begin.

Step 4: Removal
If a judgement for possession is entered for Landlord, they must then file a “Writ of Restitution” or “Writ of Eviction” with the court at least 2 days after the judgement, which then becomes active 3 days after filing. Tenant will receive a copy of this writ which will indicate the first date which they may be evicted. This writ gives the right to Landlord, with assistance from the U.S. Marshall, the legal authority to remove Tenant and their possessions from the property. If the eviction is based on nonpayment of rent, Tenant can defeat the Writ of Eviction at any time prior to actual eviction by paying all owed debts to Landlord, including: back rent, current rent, court costs and fees. Assuming that Tenant is unable to pay the owed rent, or is being evicted for some reason other than their non-payment, Tenant will be required to leave the property upon arrival of the U.S. Marshall, who will supervise the eviction.

If you’re a landlord or tenant, please feel free to contact us for a consultation.

[1] D.C. Code §42–3505.01(a)
[2] D.C. Code §42–3505.01(a-b)
[3] D.C. Code §42–3505.01(b); § 42-3206 (The “Notice” must be served in both English and Spanish by: (1) personal service to Tenant; (2) service to someone that is over 16 years old and resides on the property; or (3) posting a notice on Tenant’s door, only after a “diligent effort” to achieve notice by personal service has failed twice, and must be accompanied by a mailed copy to Tenant within 3 calendar days of posting).
[4] See D.C. Code §42–3505.01(c) discussing illegal activity in the property.
[5] The “Complaint” must be served 7 days before the appearance date and may be served by (1) personal service to Tenant; (2) substituted service to someone specified to the court that is over 16 years old and resides on the property; (3) certified mail, as long as Tenant personally signs for the letter; or (3) posting a notice on Tenants door, only after a “diligent effort” to achieve notice by personal service has failed twice, and must be accompanied by a mailed copy to Tenant within 3 calendar days of posting

By Assya Thode

It is easy and far too common to find yourself in a situation where an immediate family member, relative, or friend needs a place to stay and asks you for help.  You have probably known this person for a long time and are willing to help.  There is absolutely nothing wrong with helping, but what happens if this person over stays their welcome and then refuses to leave upon your request?*

The duration of their stay and any rent to be paid probably was not discussed in detail and you probably did not have the person sign a lease or written agreement, so how are you supposed to get this person out of your home?

Chances are you have already politely asked them to leave but after repeated failed attempts you are considering legal action because you are left with no other choice.

The first step is determining how the law characterizes your friend, relative, boyfriend, girlfriend, etc. in such circumstance.  Just because you do not have a written lease, does not mean you are powerless.

In Virginia, if no written agreement or lease is in place, then the courts consider the agreement to be verbal lease, which is treated like a month-to-month tenancy. See Virginia Code § 55-248.7 for leases governed by the Virginia Residential Landlord and Tenant Act.

The second step is to begin the eviction process.  To evict a month to month tenant, you must terminate the occupancy by sending a 30 day Notice of Termination. See Virginia Code §55-222. If the 30 day period expires and your houseguest has failed to vacate your property, you then simply follow the steps of the eviction process.  For more details and a step by step explanation of the eviction process, please see our blog The Eviction Process in Virginia: A Guide for Landlords and Tenants.

Don't give up. Eventually, you will be able to get your unwanted guest out. 

*If your guest is threatening you or you fear for your safety, please call your local law enforcement agency or 9-1-1 if it is truly an emergency.  If you fear for your safety, you may consider filing a protective order to prevent the guest from harming you. See Virginia Code § 19.2-152.10.

This blog post provides general information only and is not intended to provide the reader with legal advice. Laws often change before websites can be updated, so please contact Steven Krieger Law for a consultation to evaluate your specific case.

By: Emili Kensing

There comes a time in all renters’ lives where a pipe has leaked or pests have infiltrated, making a mess—as well as an unhappy place—of your residence.  But sometimes the effects of these mishaps are either not appropriately repaired or are so horrible that it makes living there unsafe or unsanitary.  This is when habitability—the ability to live cleanly and safely in a certain place—becomes an issue.

Although habitability may seem fairly straightforward, habitability can be a tricky issue, since there’s not much of a standard to decide what is and what is not habitable.  Thus, habitability circumstances brought before the court are decided on a case by case basis.  Guy v. Tidewater Inv. Props., 41 Va. Cir. 218, 227 (Va. Cir. Ct. 1996). But “Basic Virginia Law for Non-Lawyers” lists a few situations that are definitely non-habitable:

1. Supply running water, reasonable amounts of hot water at all times, and reasonable heat in season (unless the tenant has independent utilities or the utilities are supplied directly by an independent utility company);
   
2. Maintain in good and safe working order all electrical, heating, plumbing, sanitary, ventilating, air-conditioning, and other facilities and appliances supplied, or required to be supplied by the landlord;
   
3. Keep all common areas clean and provide appropriate waste receptacles in common areas shared by two or more dwelling units;
   
4. Comply with all housing and fire code requirements; or
   
5. Provide locks and peepholes and in properties with five or more dwelling units in one building, and install deadbolt locks and peepholes in any exterior swinging entrance doors (unless the door has a glass panel).
   

If a landlord does not comply with these requirements, a tenant may terminate the lease—after a notice of non-habitability and opportunity to fix the problem has been given to the landlord.  Isbell v. Commercial Inv. Assocs., 273 Va. 605, 616 (Va. 2007). 

Basically, if the conditions threaten your health or safety, it’s likely a violation of your warrant of habitability.  But make sure to consult a lawyer before attempting to terminate your lease to ensure that no actions can be taken against you.

By: Emili Kensing

Virginia General District Court has a variety of forms to help litigants file and defend lawsuits in a more efficient manner.  Although the forms themselves are relatively straight forward (and come with instructions), the names of the forms are not as easily understood.  Below is a simple chart to help litigants determine the appropriate form to file for the most common circumstances (there are dozens of other forms that can be seen here). 

Remember: Claims up to $5,000.00 may be filed in Small Claims Court and claims over $5,000.00 may be filed in General District Court (or Circuit).  A detailed explanation of the Virginia court system can be seen in this prior post.

By Steven Krieger

Note: If you're a landlord or tenant in Washington D.C., check out our D.C. blog post The Eviction Process in Washington, DC: A Guide for Landlords and Tenants. 

Regardless of the reason for eviction, landlords and tenants both have rights and the eviction process is controlled by statute, so the steps must be followed properly or the court may not grant your request.  In other words, a landlord cannot simply change the locks, turn off the utilities, remove tenant’s belongings, or physically remove tenant from the property.

Step 1: Provide Notice to Tenant(s)
There are two reasons to evict a tenant: 1) failure to pay rent; and/or 2) failure to comply with the obligations under the lease. 

If the tenant has not paid rent, landlord must give the tenant a 5 Day Notice to Pay (sometime landlords give the tenant 5 days to pay or quit/leave).  This notice gives the tenant five days to pay the rent or vacate the property from the date tenant was served with notice.  See Va. Code § 55-225.  If tenant pays the overdue rent, tenant has the right to remain in the property.

If the tenant is not following a non-monetary lease term, the landlord must provide tenant with a “Notice to Quit” (sometimes called a 30 day letter). This notice gives the tenant twenty-one days to correct the issue or vacate the property thirty days from the date tenant was served with notice.  See Va. Code § 55-225.43.  If tenant corrects the issue in time, the tenant has the right to remain in the property.

Step 2: Summons for Unlawful Detainer
Assuming the tenant does not pay the overdue rent and/or correct the non-monetary issue, the next step requires the landlord to file a summons for unlawful detainer.  After providing proof to the court that proper notice was given, the court will issue a summons to the tenant with a “first return date.”  This is similar to an initial hearing or appearance. 

At this hearing, the judge will ask the tenant if the tenant admits or denies the allegations in the summons.  If the tenant denies the allegations, a trial date will be set.  The judge may instruct the landlord to provide a Bill of Particulars to explain why the landlord believes they are entitled to possession and judgment.  Additionally, based on the Bill of Particulars, the judge may instruct the tenant to provide a Grounds of Defense to explain why the landlord is incorrect. 

If the tenant admits the allegations or if the tenant fails to appear, the landlord may ask for an immediate Writ of Possession and a judgment for unpaid rent.  See Va. Code § 8.01-126.  If you received a summons, whether for a landlord and tenant matter or another matter, do not ignore it!

Step 3: Trial
If tenant contests the allegations in the summons, a trial is held to determine whether the landlord is legally allowed to evict the tenant.  If the court rules that the landlord has a proper basis to evict the tenant, the tenant has ten days to appeal this ruling.  To appeal, the tenant must pay an appeal bond to the court at filing, which often includes all the money owed to the landlord plus up to one year’s future rent (though, often it is a few months).

Until a judgment is entered, the tenant can pay the landlord all unpaid rent, late fees, court costs, and attorney’s fees that are due and remain in the property.  The tenant can only exercise this right once every twelve months per landlord.

Step 4: Writ of Possession for Unlawful Detainer
If tenant does not contest the summons or landlord wins the trial (or appeal), the landlord may file a Request for Writ of Possession for Unlawful Detainer Proceedings to begin the actual eviction process.  See Va. Code § 8.01-470.  This writ must be filed within one year of the judgment.  See Va. Code § 8.01-471.  The court sends this request to the Sheriff’s Office and the Sheriff’s Office should execute the writ in fifteen days, but has thirty days from when the court signed the writ to execute the eviction.  Generally, the Sheriff’s Office will contact the landlord with the scheduled date of eviction and the tenant is given at least 72 hours notice.

Until the actual eviction begins, the landlord may continue accepting rent “with reservation” if proper notice is given to the tenant without losing the ability to evict the tenant. 

Step 5: Eviction
Although there are two types of evictions, most landlords use a “24-Hour Lock Change” eviction because it’s less expensive than a “Full Eviction.”  In a 24-Hour Lock Change Eviction, the landlord must provide a locksmith to change all the exterior locks during the scheduled eviction.  Within 24 hours after the eviction, the landlord is given possession of the property.  For the next 24 hours, the property is essentially treated as a storage facility and the landlord must give tenant reasonable access to remove personal property, but tenant may not remain in the property overnight.  After this 24-hour period, the landlord may sell or destroy any of tenant’s remaining personal property.  See Va. Code § 55-237.1.  Neither the landlord nor Sheriff actually removes tenant’s property.  If tenant remains in the property, the tenant is trespassing.

In a “Full Eviction,” the all of tenant’s property is placed on the nearest public right of way.  The landlord must provide a locksmith (like in a 24-Hour Lock Change eviction) and enough adults to remove the property.  The Sheriff’s Office will be present and is responsible for protecting the interests of the landlord and the tenant and may require the landlord to provide a moving truck, boxes, or other equipment to effectuate the removal of tenant’s personal property.

Although the courts have done a very good job to streamline this process, it can still take longer than one would like and can be complicated.  For a consultation, whether you’re a landlord or tenant, please contact Steven Krieger Law, PLLC.