Community Associations Landlord-Tenant

Escaping an Unlivable Rental Property

Americans continue to feel the effects of the recession that began in 2008. In April 2016, the Wall Street Journal reported that U.S. home ownership rates dropped to 63.5%, near the 48 year low of 63.4% experienced in 2015. Meanwhile more families are renting homes. Washington, D.C.’s local economy is more resistant to recession because of the federal government. In past years, the rental real estate market in Northern Virginia exploded. Many workers with decent wages found themselves renting because of challenges in saving up for a security deposit. Many single family homes available for rent are owned by landlords who live out-of-town. Frequently, tenants find themselves committed to written lease contracts for properties that are practically uninhabitable. Sometimes this happens because the tenants signed leases after viewing photos on the internet without an in-person inspection. In other situations, the tenants discover serious problems with the condition of the property only after living there a while. Not all habitability problems are immediately apparent upon an in-person visual inspection. Such problems can include insect or rodent infestation, contaminated water, broken furnaces, asbestos exposure, serious water intrusion, toxic mold, lead exposure or any other condition that threatens the health or safety of any occupant. Escaping an unlivable rental property has its own challenges. Tenants find themselves financially responsible for use of property that is not habitable. Adding to this, tenants must make a new financial commitment to another property if they want to move. The current landlord keeps additional leverage by holding the security deposit.

Typically, the landlord, her agent or attorney prepare the residential lease agreement. By design, that lease seeks to manage the risks of a damaging or non-paying tenant. Landlords look at their ownership responsibilities in terms of mortgages, taxes, insurance, agent’s commissions, association dues, you name it. Leases have more provisions about the tenants’ obligations than those owed by the landlord. When dealing with unlivable conditions, a tenant must consider legal protections outside the four corners of the lease agreement.

In Virginia, the chief consumer protections for tenants are found in the Virginia Residential Landlord Tenant Act. This statute applies to many landlord-tenant relationships in the Commonwealth. Also, the Virginia General Assembly enshrines the landlord’s obligations in a statute entitled “Landlord to maintain dwelling unit,” Va. Code § 55-225.3(A) requires the landlord to:

  1. Comply with the requirements of applicable building and housing codes materially affecting health and safety;
  2. Make all repairs and do whatever is necessary to put and keep the premises in a fit and habitable condition;
  3. Maintain in good and safe working order and condition all electrical, plumbing, sanitary, heating, ventilating, air-conditioning and other facilities and appliances, including elevators, supplied or required to be supplied by him;
  4. Supply running water and reasonable amounts of hot water at all times and reasonable air conditioning if provided and heat in season except where the dwelling unit is so constructed that heat, air conditioning or hot water is generated by an installation within the exclusive control of the tenant or supplied by a direct public utility connection; and
  5. Maintain the premises in such a condition as to prevent the accumulation of moisture and the growth of mold and to promptly respond to any notices as provided in subdivision A 8 of § 55-225.4.

Tenants intuitively know that they are entitled to these basic protections. How are they to get out of bad situations without bearing an unfair burden for problems which are someone else’s responsibility. Litigation should only be pursued if unavoidable. Many problems with the condition of property might require proof by testimony of an expert witness. The parties might have to wait several weeks for their first court date, and then weeks or months more for trial.

If a condition with the property is currently unbearable, the landlord can expect a prospective buyer or new tenant to have the same visceral reaction. If repairs or remediation are required, the landlord will have to pay for that while paying other obligations. The property could go for weeks or even months where the tenant rightfully doesn’t want to pay, but the landlord doesn’t want to release the tenants from their obligations. In a residential case, the parties should expect a judge to oppose giving damages for rents where the landlord could mitigate his damages by making the property livable and renting it out to a new tenant.

Under most lease agreements, timing issues are critical to tenants preserving their rights to get their deposits back. Landlords can try to enforce provisions requiring for advance notice harshly.

If the landlord refuses to let them go amicably, the tenants should prepare to go to Court if necessary to protect their rights. At the same time, where at all possible a reasonable settlement should be pursued. Depending upon how severe the problems are with the condition of the property and how the statutes and lease provisions speak to the problem, the tenants can usually negotiate an exit strategy that doesn’t require them to finance the landlord’s efforts to market or refurbish the premises. Landlords, their property managers, and attorneys will look to see if the tenants are serious in their desire to get out of an unacceptable situation while protecting their rights. Tenants have rights not to unfairly bear the financial and lifestyle burdens of landlords’ problems. Contract qualified legal counsel to protect your interests.


I would like to share an emailed comment on this article from Deborah Goonan, property rights blogger & activist:

It certainly seems to me that a tenant has more legal protection than an owner of a condo or HOA. There is no specific obligation for an Association to provide maintenance up to a habitable standard — at least not spelled out to the degree that landlord/tenant law spells out in Virginia law.

And at least the tenant can leave (theoretically — depends on the tenant’s financial situation and if there’s anywhere else for the tenant to go), and loses, at most, the security deposit.

A condo owner has a LOT more financial risk and cannot easily walk away from obligation to pay assessments and mortgage payment for a place that is not livable. (Such as Michelle Germano with the toxic drywall).


Photo Credit: 20-22 Surry Rd: Our 2 family house via photopin (license)

John Colby Cowherd
John Colby Cowherd
Attorney protecting the rights of Virginia property owners. Cowherd PLC (703) 884-2894