WHAT IS A TENANTS ASSERTION

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on December 27th 2022

WHAT IS A TENANT’S ASSERTION?

DEMYSTIFYING THE “TENANTS ASSERTION” REMEDY UNDER VRLTA § 55.1-1244

The Virginia Residential Landlord Tenant Act (“VRLTA”) was enacted by the General Assembly in 1974. “A close examination of the Act as a whole reveals an integrated statutory scheme governing contractual relationships between landlords and tenants…” Isbell v. Commercial Investment Assocs., Inc., 273 Va. 605, 614, 644 S.E.2d 72, 76 (2007). It gives the tenant the right to “assert” a claim against a landlord for the landlords’ failure to comply with an obligation imposed on him by the terms of a lease or by law related to life, health, and safety.

The VRLTA § 55.1-1244 outlines the procedures and remedies for a tenant who contends then landlord has materially breached a lease term or allowed the premises to be rendered unsafe or uninhabitable due to some material defect concerning life, health, or safety.

When Can A Residential Tenant file A Tenants Assertion?

VRLTA § 55.1-1244(a) states in relevant part that:

“[A] tenant may assert that there exists upon the leased premises a condition that constitutes a material noncompliance by the landlord with the rental agreement or with provisions of law or that, if not promptly corrected, will constitute a fire hazard or serious threat to the life, health, or safety of occupants of the premises, including

A lack of heat or hot or cold running water, except where the tenant is responsible for payment of the utility charge and where the lack of such heat or hot or cold running water is the direct result of the tenant’s failure to pay the utility charge.
A lack of light, electricity, or adequate sewage disposal facilities.
A infestation of rodents; or
The existence of paint containing lead pigment on surfaces within the dwelling, provided that the landlord has notice of such paint”

This is not an exhaustive list of defects that may give rise to a tenant’s assertion lawsuit.

What Needs to Be Filed?

FORM DC-429 (TENANT’S ASSERTION AND COMPLAINT) is filed by a Tenant who claims that the premises meets the above referenced conditions. Typically, this form has to be filed with the court along with the rent escrow “…within five days of the date due under the rental agreement…” Virginia Code § 55.1-1244(2).

What remedies are available?

Subsection (D) of § 55.1-1244 establishes potential remedies that may be afforded to a tenant after a court has ruled in favor of any specific party.

Terminating the rental agreement, or ordering the surrender of the premises to the landlord
Ordering all money accumulated in escrow disbursed to the landlord or to the tenant;

Ordering that the escrow be continued until the conditions complained of are fixed;

Rent abatement
Referring any matter before the court to the proper state or local agency for investigation and report and granting a continuance of the action or complaint pending receipt of such investigation and report.
Ordering escrow funds disbursed to pay a mortgage on the property in order to stay a foreclosure; or

Ordering escrow funds disbursed to pay a creditor to prevent or satisfy a bill to enforce a mechanic’s or materialman’s lien.

Other remedies under a tenant’s assertion claim include:

Injunctive relief (i.e. a court order demanding the property owner or managing agent immediately cease all violative conduct); see Virginia Code § 55.1-1234.
Damages to personal property resulting from the material defect complained about.

Reasonable attorney’s fees

Frequently Used Defenses against Tenant Assertions

A landlord defending a tenant’s assertion cause will likely try to prevent liability in a tenant’s assertion in a few common ways. Here is a list of a few common arguments proposed by a landlord against a tenant’s assertion.

Section § 55.1-1244(c) of the VRLTA will prevent imposition of liability on a landlord where the court finds

the conditions alleged by the tenant do not in fact exist;
1. In Caudill v. Gibson Fuel Co., 185 Va. 233 (1946), a tenant had been living in a residence with decaying floorboards on the porch. The tenant brought suit against the landlord for the unsafe conditions and the landlord defended against these allegations by asserting he was unaware of the decay when the lease was executed two years prior. The court in that case stated there was no evidence the “defendant formerly knew anything about the conditions” and the plaintiff “lived with them for two years”. Thus, the landlord in Caudill faced no liability.
such conditions have been removed or remedied;
such conditions have been caused by the tenant, his guest or invitee, members of the family of such tenant, or a guest or invitee of such family member; or
the tenant has unreasonably refused entry to the landlord to the premises for the purpose of correcting such conditions.
Lack of proper written notice before initiating a Tenants Assertion. A tenant who fails to give written notice and allow a reasonable time for remedy, makes themselves vulnerable to this defense by a landlord (See Revell v. Deegan, 192 Va. 428 holding Actual or constructive knowledge on part of landlord of defect causing injury, is necessary to render him liable).

For more questions regarding your situation, please contact Fox & Moghul for a consult. Please note that we offer PAID CONSULTS only, and the value of your claim must exceed $5,000 in order for your case to be eligible for consideration.