The process of evicting a tenant for nonpayment of rent has received lots of attention during the past couple of years, but it’s important to note that the termination process can vary considerably depending on the reasons for termination. You want to specifically focus on what notice you need to provide your tenants and what kinds of damages you (or your landlord) can ask for.
For unpaid rent, the state code now requires that a tenant be given at least 14 days’ notice before the lease can be terminated. This takes the place of the old five-day “pay or quit” notice. There are other notice requirements that have to be met for unpaid rent. The notice must contain the contact information for legal aid and also provide the tenant with information regarding rent relief programs that might be available to them. For landlords who own five or more properties in Virginia, the notice must also provide the tenant with a payment plan to pay off the accumulated debt. Virginia REALTORS® offers template letters members can use that contain all the required information. You can find them in the Property Management FAQs here.
Other lease violations are governed by Virginia Code section 55.1-1245. For a violation that can be cured (such as a noise complaint or an unauthorized pet), the tenant must get a notice stating the violation and giving them 21 days to cure. If the breach is not cured within 21 days, the landlord may terminate no less than 30 days from the date of the notice. For a non-remediable breach, there is no requirement that the tenant be given time to cure. Instead, they are given a notice stating that the lease will terminate in no less than 30 days. If the violation is one that is both non-remediable and is either criminal or poses a threat to health or safety, the landlord can send a notice terminating the lease immediately. Any illegal drug activity would be covered under this section.
The law does allow for landlords to recover actual damages related to the breach of a rental agreement. “Actual damages” can include a claim for rent that would have accrued until the expiration of the lease term or until a new lease begins, whichever comes first. However, the law is clear that a landlord who terminates a lease mid-term cannot simply sit back and let the apartment sit empty while collecting the rest of the rent as damages. Landlords have an obligation to mitigate all damages, which means that they (and you as PMs) must take all efforts to market the property and get a new tenant into the space at something close to the same rent amount. This could prove a problem for landlords who attempt to put “liquidated damages” clauses into leases. These clauses say that if the lease is terminated through some fault of tenant, the tenant agrees to pay a certain fee (like forfeiting the security deposit and paying two-months’ rent). While that could be fine, a court could say that the penalty is unlawful if the unit is re-rented and there are no actual damages.
For any additional questions regarding terminations, you can submit to the Virginia REALTORS® Legal Hotline.
*Information as of 10/20/21