Legal Question in Landlord & Tenant Law in Virginia

1 year VA lease was executed. 3months after day start my tenant informed on phone about his contract loss (although he will still be paid by contracting company who sponsored his VISA) and he had applied another job in CA. Also conveyed his intent to leave the property. I asked him to provide a documentary proof of job loss or a new job offer to consider his move-out. He did not provide that.

After another 4 months he left the property saying that he had got mold, but without providing a 30-days advanced/written notice and without paying remaining rent for the remaining lease term (5 months left). I sent him notice stating he should pay remaining rent for 5 month's till lease expires as my lease allows this to be done. Notice was delivered on last day of his move-out. He then entered the premises day after his move-out in the month for which he did not pay the rent and got mold testing done without my knowledge.

And then started demanding me to return entire security deposit without deducting damages or else he will sue me for mold. He did not show me mold report from private company.

I deducted repair costs and 1 month additional rent as penalty from his security deposit and told him he still owed me another $150. he must pay that and we end it, since it is his fault that he left without notice or without requesting me to let him go.

Instead a month later I received court summon from VA Small Claims Court where he claimed $5000 (max allowed in this court) as damages. No breakdown was provided for $5000 claims. It appeared that he wanted to get his security back as well as wanted to live there for free.

I defended the case in court and won the judgement. Since he caught me unawares with his lawsuit, also my lease allowed me to collect all remaining rent and to teach him a lesson that he did not understand our courtesy, I again mailed him notice demanding rent for remaining months. He called on phone and apologized, and thats all he did, not mention of rent payment. I mailed 2nd notice. NOW I RECEIVE A NOTICE FROM HIS ATTORNEY SAYING THAT HE LEFT THE UNIT BECAUSE OF MOLD AND IF I NEED TO TALK FURTHER I SHOULD DISCUSS THIS CASE WITH HIM.

(1) I would like to know that if I sue him, including collection agency charges which are usually 50% of the principal and other charges required for his SSN search etc, job loss, vacation loss, travel, then the total become 3-4 times his principal rent he owes me. Can I sue his for 4 times the charges in District Court, instead of small claims as it has a claim ceiling. I have lease papers and he has nothing to prove anything as he screwed up his lawsuit on me for which I have judgement in my favor. So can I win this case?

(2) Also how seriously I should consider his attorney's letter. Can I keep mailing him my 2 more notices which will make a total of 4 notices, enough evidence to sue him mentioning in court that I provided him enough time.

(3) Is still mailing notices to him can cause potential problems from his attorney?

month he entered into the property to get mold testing done. Althogh my last notice asked him to pay all rent till end of lease term, to which he was not willing to pay, so since he did not pay I still just got the tried to negotate with him by deducting his one month rent and damage repair costs frm s

Asked on 3/24/10, 2:08 pm

1 Answer from Attorneys

Jonathon Moseley Moseley & Associates Law Firm

First, it is importnat to understand the general rule.

You have an obligation to find another renter, immediately. This is always true, not just because of the odd situation. (Actually, it is always true that one must "mitigate damages" -- that is, take reasonable steps to minimize the amount of loss.)

You can then sue him for any time that the apartment is empty PLUS any costs of finding another tenant.

But you cannot collect DOUBLE rent from two different tenatns for the same time period.

If you cannot find another tenant, you can then collect unpaid rent through the entire time period of the lease to the very end of the lease period.

But you need to be ready to show that you TRIED to find another renter.

You cannot just sit and do nothing and collect all teh rent through the end of the lease.

HOWEVER, until your renter COMPLETELY moves out and gives you the key, then he is still "in" the apartment. So your obligation does not start until he completely moves out and gives you the key.

If he does not move out and is not paying, you should fill out a form in General District Court called an "UNLAWFUL DETAINER" and get the court to terminate the lease. This almost always includes a claim for the MONEY that he owes you at the same time. So you can do both at the same time. (In this case, because you have not yet regained possession of the apartment, you have no obligation yet to find another renter. That only starts when you get back control of the apartment and terminate the lease.)

I do not see any value for you to be in small claims court isntead of general district court. GDC is also rather informal, except in terms of filling out the proper form for what you want to do.

How much can you sue him for/ You need to read your lease. You can only charge him for what he AGREED to pay in the lease.

You do not need to send him any more notices before suing. You may need to make sure tha tyour notice is CORRECT as a "5 day pay or quit notice." If the contents of the notice are not correct, then you migh tneed to send a correct one.

But you don't need to send any greater number of notices.

If you had an attorney, your attorney would NOT be allowed to talk to the renter directly, because he has an attorney. But this is part of the code for attorneys. You can do anything you want. You can talk to him directly if you want.

Now, the big question is whether or not he can prove that there was mold and whether he had good cause to cancel the lease.

You need to have the apartment tested for mold. I say this NOT only to win this lawsuit now. But if you get another renter, and THEY claim there is mold, then they can say YOU KNEW there was mold (because this guy said it) and they could create greater problems. So you need to be able to find out if there is any problem or not.

The renter will need to prove that there was mold, and that might not be enough to cancel the lease. (Depends on what it says, etc.) But if you get it tested and there is no mold, then that whole issue goes away.

Of course if you get it tested and there IS a serious mold problem, they can get this information form you and from your expert in "discvoery" or ask you about it during a trial. So it can hurt you. But because you will face the same problem in the future (if there really is mold) I still think it is worth that risk.

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Answered on 3/30/10, 9:40 am

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