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Landlord is Charging an Extra Month's Rent for Failure to Give 60 Days Notice

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  • 12-06-2013, 01:39 PM
    sabres061
    Landlord is Charging an Extra Month's Rent for Failure to Give 60 Days Notice
    My question involves landlord-tenant law in the State of Virginia (common law, not VRLTA).

    I am a tenant seeking recovery of my security deposit. My 1-year lease expired on 8/31/13. Landlord withheld 1-month's worth of rent from the security deposit for the month of September, for failing to provide 60-day termination notice, as provided in the lease.

    Facts:
    I was contacted by the LL's agent via e-mail on 6/7/13 regarding plans for renewal. I responded the same day expressing wishes to convert to a month-to-month tenancy after the expiration of the lease. Weeks went by, and no response was received. As the notification date approached, I read the lease, which provides for month-to-month renewal in the event that termination notification is not received before 60 days prior to expiration. This is exactly what I wanted, so I let the cutoff date pass (7/2/13).
    On 7/15/13 (over a month later), I finally receive a response, stating that the LL does not agree to a month-to-month tenancy, and is only interested in a long-term renewal. It also correctly stated that the lease expires on 8/31/13, and asked for a response with my plans to renew or terminate. I responded that I was unable to commit long-term, and therefore chose to terminate (after a few days of scrambling to secure a new place). The LL took this response at the end of July as my 60-day notice, and deducted an extra month's rent (September) from my security deposit.

    My feeling is that I had asked to stay the month of September, was denied (unless I agreed to a long term extension), and then was charged for that month anyway. I was out of the place completely by the end of August, per the lease terms. There were also many other issues dealing with the LL's management company (Long & Foster) that I won't go into.

    Relevant Lease Clauses:
    Renewal: LL shall advise Tenant of any LL instructions concerning renewal of the lease. In absence of this notification, the lease shall be deemed renewable on a month-to-month basis under the same terms until either party notifies the other in writing.
    Termination: Unless written notice is received by either party not less than 60 days prior to the expiration date, the lease will be deemed renewed on a month-to-month basis.

    I offered to go to mediation, and was refused. I then took the LL to small claims court, and LL's attorney asked for removal to district court. I am now faced with the decision of going in pro se (I have a law degree, and am registered in NY, but not in Virginia), or hiring an attorney.

    Questions:
    Is my offer of new terms (i.e. month-to-month), made in early June, enough to satisfy the notice requirement?
    Did the LL violate the renewal clause by not provided renewal instructions in a timely manner?
    Did the LL violate the termination clause by taking the automatic month-to-month option off the table after the notification period had passed?
    If my offer of June 7 does not constitute notice, does the LL's counter-offer on July 15th of either long-term renewal or termination on August 31st in any way negate the 60-day requirement?

    Thank you for any input.
  • 12-08-2013, 07:38 AM
    Mr. Knowitall
    Re: Landlord is Charging an Extra Month's Rent for Failure to Give 60 Days Notice
    As you did not give formal notice that you were ending your tenancy at the end of the initial lease term, your best argument appears to be that you made a request for a month-to-month tenancy on 6/7, well over 60 days before the end of the lease, and that the delay in confirming your departure resulted from the landlord's failure to respond to that request in a timely manner. A judge may be sympathetic to that argument, particularly if the wording of your request suggests that you won't remain in residence if you couldn't transition to month-to-month.

    You are responsible to read, understand, and follow the terms of your lease. Your landlord doesn't have to remind you of your obligations under your lease.
  • 12-08-2013, 11:43 AM
    jk
    Re: Landlord is Charging an Extra Month's Rent for Failure to Give 60 Days Notice
    [QUOTE]I am now faced with the decision of going in pro se (I have a law degree, and am registered in NY, but not in Virginia), or hiring an attorney./QUOTE]really?

    Quote:

    Relevant Lease Clauses:
    Renewal: LL shall advise Tenant of any LL instructions concerning renewal of the lease. In absence of this notification, the lease shall be deemed renewable on a month-to-month basis under the same terms until either party notifies the other in writing.
    Termination: Unless written notice is received by either party not less than 60 days prior to the expiration date, the lease will be deemed renewed on a month-to-month basis.
    so it converted automatically to a month to month unless notice by either party was given in writing otherwise. That means as of Aug 31 you were a month to month tenant.


    Quote:

    On 7/15/13 (over a month later), I finally receive a response, stating that the LL does not agree to a month-to-month tenancy, and is only interested in a long-term renewal. It also correctly stated that the lease expires on 8/31/13, and asked for a response with my plans to renew or terminate. I responded that I was unable to commit long-term, and therefore chose to terminate (after a few days of scrambling to secure a new place). The LL took this response at the end of July as my 60-day notice, and deducted an extra month's rent (September) from my security deposit.
    so, since LL gave notice on 7/15 of no intent to continue on a month to month beyond any period he must allow, you then had 60 days after that to remain as a tenant; 9/15, so of course you would owe for Sept, or at least part of it. Haven't checked but if VA requires notice to be given with regard to rent due date, that could mean you owed for the entire month of Sept since the LL could not demand you terminate mid month.


    Quote:

    The LL took this response at the end of July as my 60-day notice, and deducted an extra month's rent (September) from my security deposit.
    unless you can prove this:

    Quote:

    I was contacted by the LL's agent via e-mail on 6/7/13 regarding plans for renewal. I responded the same day expressing wishes to convert to a month-to-month tenancy after the expiration of the lease.
    did not simply express your intent to convert to a month to month tenancy but that unless you were allowed to continue on a month to month basis, you could not continue as a tenant.

    It all boils down to:

    was your intent structured such that the LL would be aware that it's month to month or nothing.

    yes; you win
    no; you lose
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