Landlords in Virginia should prepare for a change in their lease management practices, following two upcoming changes to the Virginia Residential Landlord Tenant Act (VRLTA).
First, a pair of identical bills, Senate Bill (SB) 48 and House Bill (HB) 15, amend the VRLTA by extending the "pay or quit" default notice requirement for a tenant's failure to pay rent from 5 days to 14 days. This "pay or quit" notice is mandatory before a landlord may take a residential tenant to court and seek an eviction because the tenant has failed to pay rent. With this change to the VRLTA, landlords must act promptly in providing the "pay or quit" notice to avoid delaying the eviction process for a non-paying tenant.
Second, HB 281 lowers the bar for a tenant defense to eviction or a lawsuit for unpaid rent in certain circumstances. This change may prove to be even more consequential than the first. Under the current law, the VRLTA provides a defense for a tenant against a landlord who sues for possession because of unpaid rent or for unpaid rent while the tenant remains in possession (under Va. Code § 55.1-1241). This defense is known as a "tenant assertion," which can be made by a tenant only when (1) the leased premises suffer or are soon likely to suffer from a significant health and safety issue (such as a lack of heat, running water, light, power, or adequate sewage disposal; a pest infestation; or any condition that would be a material breach of the landlord's duties under the lease or Virginia law); (2) the tenant has provided notice to the landlord of such issue(s); and (3) the tenant, if still in possession, has paid into escrow with the court the amount of rent due.
HB 281 eliminates the third prong, the requirement for the tenant to put rent owed into escrow with the court. Removing this requirement is likely to increase the use of this powerful tenant protection. Landlords must prepare for this new world where a tenant utilizing the defensive tenant assertion is not required to "put some skin in the game" by escrowing their rent.
On a related note, the "tenant assertion" is also available as an affirmative assertion under Va. Code § 55.1-1244, allowing a tenant to sue a landlord to force the landlord to comply with certain health and safety requirements in the VRLTA. Notably, the three prongs that are present in the affirmative tenant assertion under Va. Code § 55.1-1244 are the same as those in the defensive tenant assertion under Va. Code § 55.1-1241, but HB 281 does not remove the third prong from the affirmative tenant assertion.
SB 48 and HB 15 will go into effect July 1 of this year, while HB 281 will go into effect on January 1, 2027.
Engaging with experienced legal counsel can help you navigate these upcoming changes. Please contact the authors of this article or any member of Venable's Real Estate Group.