HOUSE/SENATE BILL NO. ____
Offered June ___, 2002 Prefiled June ____, 2002
A BILL to amend § 18.2-121 of the Code of Virginia, relating to unlawful entry. ----------
---------- Referred to Committee for Courts of Justice ----------
Landlords have wrongfully refused to return promised security deposits to tenants
The process of going to Small Claims Court is financially and emotionally taxing to the tenants, often greater than the amount of the security deposit in question.
Some unscrupulous landlords know this, and have taken advantage of this.
The wrongful refusal to pay a deserved security deposit is a form of theft.
That 55-248.15:1of the Code of Virginia be amended as follows:
1. A landlord who wrongfully refuses to return the security deposit shall be charged with a class 1 misdemeanor, of larceny.
2. A landlord who has intentionally fabricates damages or charges in an attempt to retain all or part of the security deposit, shall be charged with fraud, a felony.
If any one or more subsections, sentences, or parts of this section shall be judged unconstitutional or invalid, such adjudication shall not affect, impair, or invalidate the remaining provisions thereof but shall be confined in its operation to the specific provisions so held unconstitutional or invalid.
A. A landlord may not demand or receive a security deposit, however denominated, in an amount or value in excess of two months' periodic rent. Upon termination of the tenancy, such security deposit, whether it is property or money, plus any accrued interest thereon, held by the landlord as security as hereinafter provided may be applied solely by the landlord (i) to the payment of accrued rent and including the reasonable charges for late payment of rent specified in the rental agreement; (ii) to the payment of the amount of damages which the landlord has suffered by reason of the tenant's noncompliance with § 55-248.16, less reasonable wear and tear; or (iii) to other damages or charges as provided in the rental agreement. The security deposit, any accrued interest and any deductions, damages and charges shall be itemized by the landlord in a written notice given to the tenant, together with any amount due the tenant within forty-five days after termination of the tenancy and delivery of possession.
Nothing in this section shall be construed by a court of law or otherwise as entitling the tenant, upon the termination of the tenancy, to an immediate credit against the tenant's delinquent rent account in the amount of the security deposit. The landlord shall apply the security deposit in accordance with this section within the forty-five-day time period.
The landlord shall notify the tenant in writing of any deductions provided by this subsection to be made from the tenant's security deposit during the course of the tenancy. Such notification shall be made within thirty days of the date of the determination of the deduction and shall itemize the reasons in the same manner as provided in subsection B. Such notification shall not be required for deductions made less than thirty days prior to the termination of the rental agreement. If the landlord willfully fails to comply with this section, the court shall order the return of the security deposit and interest thereon to the tenant, together with actual damages and reasonable attorneys' fees. In the event that damages to the premises exceed the amount of the security deposit and require the services of a third party contractor, the landlord shall give written notice to the tenant advising him of that fact within the forty-five-day period. If notice is given as prescribed in this paragraph, the landlord shall have an additional fifteen-day period to provide an itemization of the damages and the cost of repair. This section shall not preclude the landlord or tenant from recovering other damages to which he may be entitled under this chapter. The holder of the landlord's interest in the premises at the time of the termination of the tenancy, regardless of how the interest is acquired or transferred, is bound by this section and shall be required to return any security deposit received by the original landlord and any accrued interest that is duly owed to the tenant, whether or not such security deposit is transferred with the landlord's interest by law or equity, regardless of any contractual agreements between the original landlord and his successors in interest.
B. The landlord shall:
1. Accrue interest at an annual rate equal to one percentage point below the Federal Reserve Board discount rate as of January 1 of each year on all property or money held as a security deposit. However, no interest shall be due and payable unless the security deposit has been held by the landlord for a period exceeding thirteen months after the effective date of the rental agreement or after the effective date of any prior written or oral rental agreements with the same tenant, for continuous occupancy of the same dwelling unit, such security deposit earning interest which begins accruing from the effective date of the rental agreement, and such interest shall be paid only upon termination of the tenancy, delivery of possession and return of the security deposit as provided in subsection A;
2. Maintain and itemize records for each tenant of all deductions from security deposits provided for under this section which the landlord has made by reason of a tenant's noncompliance with § 55-248.16 during the preceding two years; and
3. Permit a tenant or his authorized agent or attorney to inspect such tenant's records of deductions at any time during normal business hours.
C. Upon request by the landlord to a tenant to vacate, or within five days after receipt of notice by the landlord of the tenant's intent to vacate, the landlord shall make reasonable efforts to advise the tenant of the tenant's right to be present at the landlord's inspection of the dwelling unit for the purpose of determining the amount of security deposit to be returned. If the tenant desires to be present when the landlord makes the inspection, he shall so advise the landlord in writing who, in turn, shall notify the tenant of the time and date of the inspection, which must be made within seventy-two hours of delivery of possession. Upon completion of the inspection attended by the tenant, the landlord shall furnish the tenant with an itemized list of damages to the dwelling unit known to exist at the time of the inspection.
D. If the tenant has any assignee or sublessee, the landlord shall be entitled to hold
a security deposit from only one party in compliance with the provisions of this section.
(2000, cc. 760, 761; 2001, c. 524.)
Except as provided in this chapter, if there is a material noncompliance by the landlord with the rental agreement or a noncompliance with any provision of this chapter, materially affecting health and safety, the tenant may serve a written notice on the landlord specifying the acts and omissions constituting the breach and stating that the rental agreement will terminate upon a date not less than thirty days after receipt of the notice if such breach is not remedied in twenty-one days.
If the landlord commits a breach which is not remediable, the tenant may serve a written notice on the landlord specifying the acts and omissions constituting the breach, and stating that the rental agreement will terminate upon a date not less than thirty days after receipt of the notice.
If the landlord has been served with a prior written notice which required the landlord to remedy a breach, and the landlord remedied such breach, where the landlord intentionally commits a subsequent breach of a like nature as the prior breach, the tenant may serve a written notice on the landlord specifying the acts and omissions constituting the subsequent breach, make reference to the prior breach of a like nature, and state that the rental agreement will terminate upon a date not less than thirty days after receipt of the notice.
If the breach is remediable by repairs and the landlord adequately remedies the breach
prior to the date specified in the notice, the rental agreement will not terminate. The
tenant may not terminate for a condition caused by the deliberate or negligent act or
omission of the tenant, a member of his family or other person on the premises with his
consent whether known by the tenant or not. In addition, the tenant may recover damages
and obtain injunctive relief for noncompliance by the landlord with the provisions of the
rental agreement or of this chapter. If the landlord's noncompliance is willful the tenant
may recover reasonable attorney's fees. If the rental agreement is terminated due to the
landlord's noncompliance, the landlord shall return the security deposit in accordance
with § 55-248.15:1.
(1974, c. 680; 1982, c. 260; 1987, c. 387; 2000, c. 760.)
If the landlord unlawfully removes or excludes the tenant from the premises or
willfully diminishes services to the tenant by interrupting or causing the interruption of
gas, water or other essential service to the tenant, the tenant may recover possession or
terminate the rental agreement and, in either case, recover the actual damages sustained
by him and a reasonable attorney's fee. If the rental agreement is terminated the landlord
shall return all of the security deposit in accordance with § 55-248.15:1.
(1974, c. 680; 2000, c. 760.)