We at Fox and Moghul are often asked, “Can my Tenant in Virginia stop paying rent and break his lease due to ‘mold’ in the apartment?”In other words, Can a tenant break his lease due to mold in the rental property? This is one of the most frequent queries we get whenever a landlord or tenant (L/T) finds mold in the leased premises. “tenant relocation due to mold”
It depends.There is no simple answer to this question. Whether a T has a right to terminate the lease without penalty depends on the particular facts of each case. However, Virginia law provides some guidelines that L/Ts should keep in mind before the start of the leasing relationship.
The purpose of this blog is to provide both L/Ts a basic framework for understanding the issues involved in lease terminations due to mold in the rental property. What are the rights and responsibilities of L/Ts? Who is liable if mold is discovered on the property? When can a tenant terminate the tenancy without exposing himself to liability?
1. What exactly has been discovered and how long has it been around?
2. Which areas of the house have been affected?
3. Who discovered it and how?
4. What is the source of the mold? Is there any water intrusion that is feeding its growth?
5. Has a certified mold inspector or industrial hygienist inspected and sampled the property?
6. Has the L/T been notified in writing? If so, when?
7. What remedial measures, if any, have been taken by the L/T? The definition of “mold remediation” under Virginia Code§55-248.4 (§ 55.1-1200) establishes certain “professional standards” that Landlord’s must follow in remediating any mold on the property.
What is Mold?
TheCenter for Disease Control (CDC)defines mold as follows: “Molds are fungi that can be found both indoors and outdoors. No one knows how many species of fungi exist but estimates range from tens of thousands to perhaps three hundred thousand or more. Molds grow best in warm, damp, and humid conditions, and spread and reproduce by making spores. Mold spores can survive harsh environmental conditions, such as dry conditions, that do not support normal mold growth.”
Remember that mold is ubiquitous; it is everywhere and grows naturally as part of the environment. The presence of mold indoors does not generally pose a threat to human health unless mold spores land on a wet or damp spot and begin producing toxic byproducts called mycotoxins (e.g. Stachybotrys chartarum, Penicillium, Aspergillus etc.).
Key Definitions Under VRLTA § 55-248.4 (§ 55.1-1200):
·“Visible evidence of mold”means the existence of mold in the dwelling unit that is visible to the naked eye by the landlord or tenant in areas within the interior of the dwelling unit readily accessible at the time of the move-in inspection.
·“Readily accessible”means areas within the interior of the dwelling unit available for observation at the time of the move-in inspection that do not require removal of materials, personal property, equipment or similar items.
·“Interior of the dwelling unit”means the inside of the dwelling unit, consisting of interior walls, floor, and ceiling, that enclose the dwelling unit as conditioned space from the outside air.
·“Mold remediation in accordance with professional standards”means mold remediation of that portion of the dwelling unit or premises affected by mold, or any personal property of the tenant affected by mold, performed consistent with guidance documents published by the United States Environmental Protection Agency, the U.S. Department of Housing and Urban Development, the American Conference of Governmental Industrial Hygienists (the Bioaerosols Manual), Standard Reference Guides of the Institute of Inspection, Cleaning and Restoration for Water Damage Restoration and Professional Mold Remediation, or any protocol for mold remediation prepared by an industrial hygienist consistent with said guidance documents.
The Move In Inspection Report And “Visible Evidence of Mold”
The VRLTA allows the landlord, the tenant, or both parties jointly to prepare a move in inspection report “itemizing damages to the dwelling unit existing at the time of occupancy.” see VRLTA § 55-248.11:1 (§ 55.1-1214). The purpose of this statute is to create a written record documenting the condition of the premises at the beginning of the tenancy.
A move in inspection report documenting the condition of the premises at the time the tenant takes possession of the rental property is mandated by VRLTA § 55-248.11:1 (§ 55.1-1214) (Inspection of premises). The statute allows the Landlord, Tenant or both parties jointly to prepare such report “itemizing damages to the dwelling unit existing at the time of occupancy.”
Landlords should be aware that VRLTA § 55-248.11:2 (§ 55.1-1215) requires them to disclose the presence of any “visible evidence of mold” in the “readily accessible” areas inside the rental property. If there is no such visible evidence, then it should be noted on the move in inspection report, which “shall be deemed correctunless the tenant objects thereto in writing within five days after receiving the report.” (see section on Landlord’s duties below). Why is this important?
“Rebuttable Presumption” Under Virginia Code § 8.01-226.12.
If the move-in inspection report does not indicate the presence of any visible evidence of mold, there is a rebuttable presumption in the law that no mold existed in the premises at the beginning of the tenancy.
This is codified under 2008 law enacted by the General Assembly that provides Virginia landlords with a “safe harbor” under Virginia Code § 8.01-226.12, which states that if the move in inspection report indicates
· no visible evidence of mold in areas readily accessible within the interior of the dwelling unit, and
· the tenant does not object thereto in writing within five days after receiving the report,
· there shall be a rebuttable presumption that no mold existed at the time of the move-in inspection.
Thus, careful Landlords will ensure that the move in report is prepared with adequate care and reflects the presence or absence of mold. In the event of any subsequent mold discovery on the premises, Landlords have a viable defense that they are not liable, and that any mold growth was likely caused by the tenants.
Tenants Duty to Use “Reasonable Efforts” Under Virginia Code § 55-248.16(10)(§ 55.1-1227(10).
During the tenancy, tenants have a duty to use “reasonable efforts” to maintaining the premises in a manner that prevents the growth of moisture and mold. This is codified under Virginia Code § 55-248.16(10) (§ 55.1-1227(10)), which states that a tenant must:
Use reasonable efforts to maintain the dwelling unit and any other part of the premises that he occupies in such a condition as to prevent accumulation of moisture and the growth of mold, and to promptly notify the landlord of any moisture accumulation that occurs or of any visible evidence of mold discovered by the tenant;
Therefore, tenants who neglect to “promptly notify” the landlord of any moisture accumulation or water leaks, or fail to properly maintain the premises, may eventually be liable for any mold growth in the premises. Under circumstances where the tenant is determined to be responsible for the mold growth, the Landlord may not be liable for the costs of mold remediation.
Landlord’s Duty of “Ordinary Care” Related to Mold Remediation.
On the other hand, if the tenant discovers mold and promptly notifies the landlord of such condition, the Landlord must “promptly respond” and use ordinary care to remediate the mold in accordance with “professional standards.” If the remediation timeframe exceeds 30-days, then the Tenant may legally terminate the lease without penalty (see below). Further, the Landlord must “reinspect the dwelling unit to confirm that there is no longer visible evidence of mold in the dwelling unit “(see Virginia Code 55-248.13; Va. Code 8.01-226.12(E).
Landlords should be very careful at this juncture in light of the Virginia Supreme Court’s ruling in Sales v. Kecoughtan Housing Company, 279 Va. 475, 482, 690 S.E.2d 91, 95 (2010), in which the Court held that the landlord’s representations regarding the mold conditions, and the remediation thereof, were statements of fact, not opinion, which could form the basis of a claim for fraud.
[W]e hold that Abbitt’s alleged statements that the apartment was safe for habitation and that the mold problem had been remedied were statements of the present quality or character of the instant property, and thus statements of fact rather than opinion. These statements are alleged in the amended complaint to be misrepresentations of a material fact that were made to Sales, that Sales relied upon them, and that he was damaged as a result thereof. Thus, whether made intentionally or negligently, these alleged statements may serve as a basis for an action for actual or constructive fraud.
The presence, or lack thereof, of a “mold condition” on the premises is not a straightforward issue. This often requires the opinion of a certified industrial hygienist or mold inspector illustrating the mold spore count in the premises, and more importantly, the types of specific mycotoxins that may or may not exist on the premises.
Mold Remediation and Relocation of the Tenant.
If there is a mold condition on the premises that “materially affects the health or safety” of the T, then the Landlord may elect to temporarily relocate the T to a hotel or other alternate accommodation while remediation is completed at the premises. If the L so chooses, then under Virginia Code § 55-248.18:2., the L must provide the tenant with either:
i) A comparable dwelling unit, as selected by the landlord, at no expense or cost to the tenant; or
ii) A hotel room, at no expense or cost to the tenant.
Remember, that even if the presence of mold is established,the tenant cannot withhold rent. There is a specific process called the Tenants Assertion that must be followed, which this article discusses below.
Are Managing Agents Liable for Mold In the Property?
Under Virginia Code 8.01-226.12(C), managing agents are not liable to Tenants for their personal injuries due to mold unless they haveactual knowledgeof the mold andfail to discloseit in the move-in inspection report.
Conversely, if the presence of mold is not known to the managing agent but he is put on notice by the tenant, then he will only be liable if he is required to perform maintenance on the rental property, and he fails to observe ordinary care.
The 21/30-Day Notice to Cure – How to Notify The L/T of Mold In The Property (VRLTA §§ 55-248.21; 55-248.31) (§ 55.1-1234; 55.1-1245)?
In the event that the Landlord has failed to promptly remediate a mold condition on the premises despite being notified of the same, the T should serve a 21/30-day Notice to Cure upon the L “specifying the acts and omissions constituting the breach and stating that the rental agreement will terminate upon a date not less than 30 days after receipt of the notice if such breach is not remedied in 21 days” (see VRLTA § 55-248.21) (§ 55.1-1234).
What Is A Tenant’s Assertion?
The Tenants Assertion and Complaint is a civil instrument that Ts can use to assert civil claims for damages related to tenancy against the Landlord. You can obtain the actual formhere. Instead of withholding rent from the Landlord, Tenants should file a Tenants Assertion in court andescrowtheir rent with the court. This way, the judge decides at the end of the trial, if any, who gets the escrowed rent.The applicable statute, VRLTA § 55-248.27(§ 55.1-1244)(Tenant’s assertion; rent escrow), states that,
The tenant may assert that there exists upon the leased premises, a condition or conditions which constitute a material noncompliance by the landlord with the rental agreement or with provisions of law, or which if not promptly corrected, will constitute afire hazard orserious threat to the life, health or safetyof occupants thereof...
What are some of the circumstances warranting the filing of a Tenants Assertion in General District Court? The statute specifically names the following conditions; however, its actual application is much broader, and covers situations involving mold because those constitute a “serious threat to the life, health or safety.”
· lack of heat
· lack of hot or cold running water
· lack of light
· Lack of electricity
· Lack of adequate sewage disposal facilities
· infestation of rodents
· existence of paint containing lead pigment on surfaces within the dwelling
If there is mold, tenants have the option to terminate the tenancy or not take possession of the unit. If the tenant decides to stay, the landlord must remediate the mold within five days. (Va. Code Ann.When can you withhold rent in Virginia? ›
Also, remember that Virginia does not allow a tenant to withhold rent. Per the law, you must notify a landlord of problems. However, deciding what is required and what notices you should send can be complicated. Facing an eviction can only make the situation more urgent.How long does a landlord have to fix something in Virginia? ›
If the problem is an emergency (such as no heat in winter, or no water), your landlord must fix it immediately. This means within hours, or at most a day or two. For other repairs, you should give a reasonable time, such as 10-15 days, to make the repairs needed.What are renters rights in Virginia? ›
According to Virginia landlord-tenant law, tenants have the right to live in a habitable unit that complies with proper housing regulations. Additionally, tenants have the legal right to request required repairs if the unit has any kind of damage that exceeds normal wear and tear.Is landlord responsible for mold in Virginia? ›
If visible evidence of mold occurs within the dwelling unit, the landlord or managing agent with the maintenance responsibilities shall, exercising ordinary care, perform mold remediation in accordance with professional standards.What is the VA code for mold remediation? ›
Va. Code §§55.1-1215. Relocation. If a mold condition “materially affects the health or safety” of occupants, a landlord may require a tenant to vacate the unit for up to 30 days while the landlord undertakes mold remediation consistent with professional standards.How far behind on rent before eviction in Virginia? ›
Rent is considered late if it remains unpaid on the 5th day. Before a landlord can start with the eviction action for not paying rent, the landlord must provide a notice to the tenant called a 5-Day Notice to Pay.Why would you withhold rent in Virginia? ›
your protection from landlord retaliation, such as a termination notice or a rent increase, for exercising your legal right to pay less rent because of a habitability problem, and. any other conditions that apply before you can withhold rent, such as a requirement that you pay rent into an escrow account.How do I report a slumlord in Virginia? ›
Complaints involving such issues should be directed to the Virginia Fair Housing Office at 888.551. 3247 or 804.367. 8530.Can I sue my landlord in Virginia? ›
Tenants can sue landlords in small claims court for the return of their security deposit, up to a dollar amount of $5,000.
The landlord or the tenant may terminate a month-to-month tenancy by serving a written notice on the other at least 30 days prior to the next rent due date, unless the rental agreement provides for a different notice period. The landlord and the tenant may agree in writing to an early termination of a rental agreement.What is the grace period for rent in Virginia? ›
Grace period not required, but usually 5 days. Courts usually allow late fee of 10% of the unpaid amount.Does Virginia enforce rent control? ›
There is no rent control in Virginia. Therefore, there is no limit on rent increases a landlord can impose, but they must give a 30-day written notice of the increase. If a tenant objects to the new rent amount, they have the right to vacate the unit within that 30-day period.What is landlord harassment in Virginia? ›
Landlord harassment is when the landlord creates conditions that are designed to encourage the tenant to break the lease agreement or otherwise abandon the rental property that he or she is currently occupying.What does a landlord have to provide in Virginia? ›
Under Virginia landlord tenant law, it is your responsibility to provide a habitable property. That is, one that meets the state's building and housing codes. The implied warranty of habitability law requires landlords to: Provide their tenant with a property that has working electrical and plumbing systems.Is mold regulated in Virginia? ›
Mold remediation and inspection is an unregulated industry in Virginia. Unlike asbestos and lead, the Environmental Protection Agency (EPA) does not regulate mold remediation and inspection, and does not provide regulatory guidance and standards.Do you have to disclose mold in Virginia? ›
As part of the written report of the move-in inspection required by § 55.1-1214, the landlord shall disclose whether there is any visible evidence of mold in areas readily accessible within the interior of the dwelling unit.What are the symptoms of being exposed to mold? ›
Some people are sensitive to molds. For these people, exposure to molds can lead to symptoms such as stuffy nose, wheezing, and red or itchy eyes, or skin. Some people, such as those with allergies to molds or with asthma, may have more intense reactions.How do you prove mold illness? ›
A blood test, sometimes called the radioallergosorbent test, can measure your immune system's response to mold by measuring the amount of certain antibodies in your bloodstream known as immunoglobulin E (IgE) antibodies.What is a mold protocol? ›
What is a Mold Remediation Protocol? A Mold Remediation Protocol is typically written when items or areas have been identified containing an unacceptable amount or type of mold and a client requires an industry recognized method of removal or cleaning instructions.
The health consequences of mold exposure will vary from person to person. This means some individuals with mold sensitivity will meet the ADA's definition of disability, and some will not. For those with relatively healthy immune systems, symptoms of exposure may be mild.Can a landlord evict you without going to court in Virginia? ›
Under Virginia law, the landlord may not shut off utilities, lock you out of the rental unit, or evict you without giving notice and going to court.How do I stop being evicted in Virginia? ›
If you do not have all the money that's owed, you may be able to prevent the eviction by getting a written commitment from a local government or nonprofit agency to pay the rent due, plus late charges, attorney fees, and court costs within 10 days of the first date set to appear in court (called the “return date”).What is the code 8.01 126 in Virginia? ›
Summons for unlawful detainer issued by magistrate or clerk or judge of a general district court.Can you be evicted if you pay partial rent in Virginia? ›
Such notice shall include the following language: "Any partial payment of rent made before or after a judgment of possession is ordered will not prevent your landlord from taking action to evict you.Can a landlord sue for unpaid rent in Virginia? ›
If you do not pay within the 5 days, the landlord can file a court case to make you leave. If the landlord does this, you will get a paper from the court (called an unlawful detainer) that gives the date of your hearing.What happens if a tenant doesn't pay rent in Virginia? ›
Virginia State Laws on Termination for Nonpayment of Rent
Virginia landlords must give tenants at least five days in which to pay the rent or move. If the tenant does neither, the landlord can file for eviction. (Va. Code §§ 55.1-1245, 55.1-1250 (2020).)
Contact the Enforcement Division at 1-800-533-1560 or (804) 367-4691.How do I report unsafe living conditions in VA? ›
You can file a complaint with either office or both. (804) 367-8530 or (888) 551-3247 http://www.dpor.virginia.gov/FairHousing/ There is information on their webpage about your rights, the investigative process, and a link to file a Fair Housing complaint.What does the Virginia Fair Housing Act prohibit? ›
Virginia's Fair Housing Law makes it illegal to discriminate in residential housing on the basis of race, color, religion, national origin, sex, elderliness, familial status, disability, source of funds, sexual orientation, gender identity, or military status.
The tenant shall not unreasonably withhold consent to the landlord to enter into the dwelling unit in order to inspect the premises; make necessary or agreed-upon repairs, decorations, alterations, or improvements; supply necessary or agreed-upon services; or exhibit the dwelling unit to prospective or actual ...What is squatters rights in Virginia? ›
In Virginia, a squatter must reside on a property for at least 15 years before making an adverse possession claim. This period must be uninterrupted, meaning the tenant cannot leave for a few weeks or months and make an adverse possession claim.How can I legally break my lease in Virginia? ›
Either party may terminate a rental agreement with a term of 60 days or more by giving written notice to the other at least 60 days prior to the termination date; however, the rental agreement may require a longer period of notice.What is the code 55 222 in Virginia? ›
55-222. Notice to terminate a tenancy; on whom served; when necessary. A tenancy from year to year may be terminated by either party giving threemonths' notice, in writing, prior to the end of any year of the tenancy, ofhis intention to terminate the same.How many days notice must be given to evict in Virginia? ›
30-day letter (Notice to Quit) for contractual issues. This notice applies if the tenant is in violation of the lease/rental agreement. The landlord gives the tenant written notice to vacate the premises within 30 days.What is a month to month tenant in Virginia? ›
A Virginia month-to-month lease agreement is an at-will rental contract between a landlord and tenant whereby the tenant is required to pay rent on a monthly basis to maintain their tenancy.What happens if a tenant refuses to leave after lease expires in Virginia? ›
If the lease expired and the tenant won't leave, you'll need to either file an eviction or let the tenant be. If you do nothing, then the tenant will become a holdover tenant as discussed earlier in this post. If you're going to proceed forward with an eviction, be sure to follow all the proper legal procedures.What is the max late fee rent in Virginia? ›
A landlord shall not charge a tenant for late payment of rent unless such charge is provided for in the written rental agreement. No such late charge shall exceed the lesser of 10 percent of the periodic rent or 10 percent of the remaining balance due and owed by the tenant.What is considered short term rental in Virginia? ›
The provision of a room or rooms within a dwelling unit for rent to a guest for fewer than 30 consecutive nights when an owner of the property is present on the premises during the entire rental period.Does a lease automatically go month to month in Virginia? ›
Lease automatically may renew on a month-to-month basis unless landlord or tenant gives written notice of non-renewal before the end of the set term.
According to US Census Bureau data, Virginia ranked as the 5th highest for one-bedroom rent increases across the country in 2022.Does Virginia preempt rent control? ›
VIRGINIA. No rent control, does not preempt rent control: Applies the Dillon Rule to matters or governmental units not accounted for in the constitutional amendment or statute which grants Home Rule.What rights do renters have in Virginia? ›
According to Virginia landlord-tenant law, tenants have the right to live in a habitable unit that complies with proper housing regulations. Additionally, tenants have the legal right to request required repairs if the unit has any kind of damage that exceeds normal wear and tear.What does unlawful detainer mean in Virginia? ›
Va. Code § 8.01-126. If the tenant does not comply with the notice, the landlord brings proof of the notice to the General District Court to obtain a Summons for Unlawful Detainer, which is a civil claim for eviction.Who is subject to the Virginia Residential landlord tenant Act? ›
Generally speaking, the Virginia Residential Landlord Tenant Act, or VRLTA, applies to apartment complexes, regardless of the number of apartments; single-family houses, if the landlord rents out more than two of them; and hotels, motels, or boarding houses if the tenant has been renting for more than 90 days or has a ...Under what conditions may a landlord evict a tenant in Virginia? ›
In Virginia, landlords can evict tenants for a lease violation. The landlord must give tenants a 30-Day Notice to Comply, which provides them with 21 days to fix the issue. Should the tenant be unable to resolve the issue within 21 days, the tenant has the remaining 9 days to vacate the rental property.Do landlords have to paint between tenants in Virginia? ›
No state law requires landlords to repaint a rental unit in between tenants. Some local (city or county) ordinances might require landlords to repaint under certain circumstances.How do I file a complaint against a landlord in Virginia? ›
You can file a complaint with either office or both. (804) 367-8530 or (888) 551-3247 http://www.dpor.virginia.gov/FairHousing/ There is information on their webpage about your rights, the investigative process, and a link to file a Fair Housing complaint.What are the side effects of black mold? ›
Black mold is a fungus that may cause your immune system to react. Common symptoms include sneezing, coughing, congestion and eye irritation. It rarely causes serious illness or death but may worsen asthma symptoms.What is difference between mold and mildew? ›
Mildew refers to certain kinds of mold or fungus. The term mildew is often used generically to refer to mold growth, usually with a flat growth habit. Molds include all species of microscopic fungi that grow in the form of multicellular filaments, called hyphae.
These symptoms usually first appear 2 to 9 hours after exposure and last for 1 to 3 days. Other affected persons have progressive shortness of breath and cough, as well as weight loss.How do you test if mold is making you sick? ›
A blood test, sometimes called the radioallergosorbent test, can measure your immune system's response to mold by measuring the amount of certain antibodies in your bloodstream known as immunoglobulin E (IgE) antibodies.