Settling the Back Rent

Landlords and their property managers should be cautious in their communications with tenants that are in default for non-payment of rent.  While it may be prudent to work out a payment plan that is acceptable to the landlord, the landlord must be careful to avoid creating a new agreement with the tenant that might supersede the payment terms in the lease.  This is especially true if the landlord is going to forgive or delay a portion of the back rent as part of the new agreement. The landlord should expressly reserve, in writing, all of its rights under the lease should the tenant default on the new payment plan, including the right to commence a legal action to recover all of the back rent that is owed under the lease.  The landlord’s failure to do so can result in enforcement problems should the tenant fail to honor the payment plan.

Gross & Romanick Secures Large Judgment for Landlord Client

On February 28, 2014, Gross & Romanick secured a judgment in excess of $30,000 for a landlord client against a tenant that defaulted and vacated.  

Video: Eviction Procedures in Northern Virginia

Negotiating the Lease Termination

In today’s climate, an unfortunate number of businesses are unprofitable and are forced to close their doors.  Gross & Romanick, P.C. has noticed a significant increase in the number of tenants requesting early lease terminations.  Many of these businesses have made great efforts to stay afloat during the last few years, but simply cannot operate any longer.

For many landlords, negotiation of a lease termination agreement is a better option than simply allowing a tenant to desert the premises and return the keys to the property manager.  Without a termination agreement, the landlord is left in the unfavorable position of having to file a lawsuit to obtain a judgment for money damages.  In Virginia, if the landlord takes back the space after the tenant deserts the premises (i.e. the landlord does not sue for possession of the space), the landlord may be forced to file its lawsuit in the more expensive Circuit Court to recover a judgment for damages.  In addition, many Circuit Court judges are unwilling to award damages  for rent that would be owed through the expiration of the lease term, if that date is in the future. 

Constructive Eviction in Virginia

A “constructive eviction” is an extreme remedy asserted by a tenant to terminate a lease before its expiration date. This remedy is often asserted by tenants seeking to break unfavorable or undesirable leases. It can also be asserted as a defense to a landlord’s claim for unpaid rent following the tenant’s early departure from the premises. 

In Virginia, the burden of proving a constructive eviction rests with the tenant.  The tenant must prove that: (1) a defective condition existed on the premises which deprived the tenant of beneficial enjoyment of the premises; (2) the defective condition was the responsibility of the landlord to repair; (3) the landlord breached the lease by failing to repair the defective condition; (4) the tenant gave notice to the landlord that it was in breach of the lease for failing to repair the defective condition; and (5) the tenant vacated the premises within a reasonable time after the defective condition deprived the tenant of beneficial enjoyment of the premises.

By including provisions in the lease that limit the tenant’s rights upon an alleged loss of beneficial enjoyment of the premises, a commercial landlord can protect itself from an assertion of a constructive eviction.