Residential leases normally are written by, or on behalf of, landlords. As such, they often give landlords the right to recover their attorneys’ fees and costs in a successful legal action against a tenant – but don’t give similar rights to tenants.

But a recent trend in Virginia landlord-tenant law has created opportunities for tenants to recover legal fees from landlords – even when a lease is silent in that regard. In deciding whether to resolve landlord-tenant disputes through litigation, it is important for landlords, in consultation with legal counsel, to consider the potential financial exposure created by these provisions.

Before October 1, 2019, there were two sets of laws applicable to Virginia residential landlords: the Virginia Residential Landlord Tenant Act (“VRLTA”), and the “common law,” which applied to most small landlords in lieu of the VRLTA.

Historically, the VRLTA was considered tenant-friendly, and was designed to prevent abuses by large institutional landlords. The common law, on the other hand, applied to landlords with only a few rental units. It was more landlord-friendly because it imposed far fewer restrictions on landlords. For the most part, until recently, the common law left the issue of attorneys’ fees largely as a matter of contract between landlord and tenant.

Over the past few years, the Virginia General Assembly has been chipping away at the legal advantages for the small landlord. With the sweeping recodification of landlord-tenant law that took effect October 1, 2019, the legislature put the final nail in the coffin of the landlord-friendly common law. Now, there is only one law for all landlords, big and small, and it is the VRLTA.

In certain circumstances, the VRLTA affords tenants the right to recover attorneys’ fees from landlords, even when the lease doesn’t otherwise give them this right. Landlords should be aware of these provisions so that they don’t unwittingly fall prey to these “attorneys’ fees traps.”

Perhaps the most significant possibility for an attorneys’ fees award to tenants lies in the complex VRLTA requirements dealing with the return of security deposits. If the landlord willfully fails to comply with these requirements, the VRLTA provides that, with some exceptions, the court must order the return of the entire security deposit to the tenant, together with actual damages and reasonable attorneys’ fees.

One of the most powerful remedies in the tenant’s arsenal –the tenant assertion—also allows an award of attorneys’ fees to the tenant. The tenant assertion, when properly filed, enables the tenant to pay rent to the court, instead of to the landlord. In such instances, the court can order a variety of remedies, including forcing the landlord to make repairs resulting from the landlord’s material noncompliance with the lease or to remedy a condition that, if not properly corrected, will constitute a serious threat to the life, health, or safety of the tenants. In the context of the tenant assertion, the court can order the landlord to pay the reasonable costs of the tenant, including court costs, and attorneys’ fees.

Even in an eviction for nonpayment of rent, a court may require the landlord to pay the tenant’s reasonable costs, including attorneys’ fees, if a tenant successfully demonstrates that a fire hazard or other serious condition is present.

Other instances where tenants can be awarded their reasonable attorneys’ fees include, but are not limited to, instances when a landlord:

  • abuses the right to enter the premises;
  • attempts to enforce a lease provision that waives any rights or remedies available to the tenant under the VRLTA, or any lease provision that is prohibited by the VRLTA;
  • unlawfully removes a tenant, disrupts essential services, or fails to supply an essential service;
  • materially fails to comply with the lease or with any provision of the VRLTA materially affecting health and safety;
  • does not follow the application deposit return provisions of the VRLTA; or
  • fails to deliver possession on time.

The above discussion is not a substitute for legal advice. Landlords and tenants should always contact their attorney for guidance concerning their particular legal issue.

Kathleen McDermott teaches “Landlording” in the Fairfax County ACE Program. As part of her legal practice at ALG, she advises landlords and tenants in navigating the complex provisions of the VRLTA.