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Withholding Rent for an Unsafe or Unhealthy Property in Virginia

By Nicholas C. Erickson, Esq.

Under Virginia law, a Landlord has an obligation to maintain a residential rental property in a habitable and sanitary condition, regardless of any language in the residential lease shifting maintenance responsibilities to the Tenant. 

It is generally true that a Tenant cannot unilaterally withhold rent in Virginia because of unsafe of unhealthy property conditions unless allowed by the terms of a Lease.  However, proper notice to the Landlord and the timely filing of a lawsuit can be a very effective means to compel the Landlord to fix the unsafe condition or permit the Tenant to terminate the Lease early without penalty.

Both Va. Code §§ 55-225.12 and 55-248.27 provide that it is a material noncompliance by the Landlord to permit a condition “not promptly corrected” that:

  • Will constitute a fire hazard
  • Will constitute a serious threat to the life, health, or safety of occupants, including:
    • Lack of heat
    • Lack of hot running water
    • Lack of cold running water
    • Lack of light
    • Lack of electricity
    • Lack of adequate sewage disposal facilities
    • Infestation of rodents (unless the residential rental property is a single-family house); and
    • Existence of lead paint on surfaces within the dwelling.

If any of these conditions exists, the Tenant should take immediate action to preserve his or her rights.  But, under Virginia law, a Tenant may not immediately withhold rent until giving the Landlord an opportunity to correct the condition.  The notice may be given either in writing or by reporting the condition to an appropriate state or municipal agency.  The agency will then give the Landlord a violation or condemnation notice. Virginia law presumes that “a period in excess of thirty days from receipt of the notification by the landlord is unreasonable.” Va. Code §§ 55-225.12(B)(1) and 55-248.27(B)(1).

After the Landlord has failed to reasonably remedy the condition after proper notice, the Tenant may elect to withhold all or part of the rent by filing a Tenant’s Assertion and Complaint and depositing the rent due into an “escrow account” with the General District Court in the location where the property is located.  If the General District Court finds that the condition exists and the Landlord has unreasonably delayed in fixing the condition, the Court may order: 

  • Termination of the lease and surrender of the property to the Landlord;
  • Distribution of escrowed funds to the Tenant or Landlord, as appropriate;
  • Continuation of the escrow until the condition is fixed;
  • Reduction in the amount of rent due;
  • Return of all rent paid to the Tenant;
  • Payment of rent to the Landlord for the purpose of making repairs;
  • Referral to a state of municipal agency for investigation;   
  • Payment of  rent to Landlord’s Lender to forestall foreclosure; and   
  • Payment of rent to creditors to prevent enforcement of a mechanic’s or materialman’s lien against the property.

If the Court does find the condition exists, Virginia law presumes the Tenant is entitled to some reduction of rent. The Landlord can dispute the rent reduction.

The above is an outline highlighting some of the steps in the process of withholding rent.  If you are in a landlord/tenant dispute or may need to file a Tenant’s Assertion and Complaint, please contact Caulkins & Bruce, PC (https://www.caulkinsbruce.com) for a case evaluation and consultation. 

The information presented here should not be construed to be formal legal advice nor the formation of a lawyer/client relationship.

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