Breaking a Lease in Virginia

Breaking a Lease in Virginia

Last Updated: July 18, 2022 by Elizabeth Souza

Find out when a tenant can legally break a lease in Virginia, when they can’t, and if a landlord is required by Virginia law to make reasonable effort to re-rent.

Before we address the legally acceptable reasons to get out a lease early without penalty, it’s important to understand the notice requirements in Virginia to end a tenancy.

Lease Termination Notice Requirements in Virginia

In Virginia, a tenant is not required to provide notice for fixed end date leases, the lease expires on the last day of the lease. Virginia tenants have to provide written notice for the following lease terms (VA Code § 55-222):

  • Notice to Terminate a Lease With No End Date. 120 days’ notice prior to the end of the lease
  • Notice to Terminate a Month-to-Month Lease. 30 days or less if both parties agreed to a shorter notice period in the lease.

Delivering Notice in Virginia

In most cases, a written lease agreement should include information and other specifics on how and when to deliver a notice to terminate the tenancy. Some common ways to deliver the notice to the landlord are by mail or by delivering the written notice in person; however, it’s best to review the lease agreement to see which delivery method the landlord prefers.

If notice is not given, it could result in penalties and consequences.

There are a handful of scenarios where a tenant can legally break a lease in Virginia without penalty. We’ll go through each of them below.

Questions? To chat with a Virginia landlord tenant attorney, click here

1. Early Termination Clause

Some modern lease agreements may provide specific terms that would allow a tenant to terminate a lease early in exchange for a penalty fee. Read over the lease and look for language that outlines agreed-upon terms for ending the lease before the end of the fixed period, such as the amount of the fee (i.e. equal to 2 month’s rent) and the amount of notice required (i.e. 30 days).

If a lease agreement contains an early termination clause, before executing it and paying the penalty fee, read further to learn about other conditions that, if met, would not require a penalty fee to be paid.

2. Active Military Duty

The Servicemembers Civil Relief Act (SCRA) helps protect active service members who are relocated due to deployment or permanent change of station. The protection begins on the date of entering duty and ends between 30-90 days after the date of discharge.

To break a lease in accordance with the relief act, a tenant must:

  • Prove the lease was signed before entering active duty.
  • Prove they will remain on active duty for at least the next 90 days.
  • Deliver a written notice to the landlord (example, page 2), accompanied by a copy of the orders to deploy/Permanent Change of Station (PCS) or a letter from their commanding officer stating their pending deployment.

With that said, the lease does not terminate immediately. Once the notice is delivered, the earliest the lease can terminate is 30 days after the beginning of the next rent period. For example, if the notice was delivered on the 23rd of March, and the rent is due on the 1st of each month, the earliest the lease can terminate is May 1st therefore, rent is still due for the month of April.

note

In Virginia, the term “servicemember” means a member of the armed forces, commissioned corps of the National Oceanic and Atmospheric Administration (NOAA), commissioned corps of the Public Health Service, and the activated National Guard.

3. Unit is Uninhabitable

Most states have specific health and safety codes that provide minimum standards for rental units, and Virginia is no different.

If those standards are not met, proper notice is given by the tenant and the repairs are still not made within the allowable time period, a tenant would be considered “constructively evicted”. As a result, the obligations of the tenant under the lease are no longer required, given that the landlord has not met their own responsibilities under the Virginia landlord-tenant law.

According to Virginia state law, landlord duties to provide habitable premises include the following (VA Code § 55-225.3).

  • Building and Housing Codes. Comply with the requirements of applicable building and housing codes materially affecting health and safety.
  • Repairs. Make all repairs and do whatever is necessary to put and keep the premises in a fit and habitable condition.
  • Clean and Safe. Keep all common areas shared by two or more multifamily dwelling units of the premises in a clean and structurally safe condition.
  • Maintain. All electrical, plumbing, sanitary, heating, ventilating, air-conditioning and other facilities and appliances, including elevators, supplied or required to be supplied by the landlord shall be in good and safe working order and condition.
  • Moisture and Mold. Maintain the premises in such a condition as to prevent the accumulation of moisture and the growth of mold and to promptly respond to any notices as provided in subdivision A 10 of VA Code § 55-225.4. Where there is visible evidence of mold, the landlord shall promptly remediate the mold conditions in accordance with the requirements of subsection E of VA Code § 8.01-226.12 and reinspect the dwelling unit to confirm that there is no longer visible evidence of mold in the dwelling unit. The landlord shall provide a tenant with a copy of a summary of information related to mold remediation occurring during that tenancy and, upon request of the tenant, make available the full package of such information and reports not protected by the attorney-client privilege. Once the mold has been remediated in accordance with professional standards, the landlord shall not be required to make disclosures of a past incidence of mold to subsequent tenants.
  • Water. Supply running water and reasonable amounts of hot water at all times and reasonable air conditioning if provided and heat in season except where the dwelling unit is so constructed that heat, air conditioning, or hot water is generated by an installation within the exclusive control of the tenant or supplied by a direct public utility connection.
  • Receptacles. Provide and maintain appropriate receptacles and conveniences for the collection, storage, and removal of ashes, garbage, rubbish, and other waste incidental to the occupancy of one or more dwelling units and arrange for the removal of same.
  • Smoke Alarms. Provide a certificate to the tenant stating that all smoke alarms are present, have been inspected, and are in good working order no more than once every 12 months. The landlord, his employee, or an independent contractor may perform the inspection to determine that a smoke alarm is in good working order.

For more information on habitability laws Virginia, click here.

4. Landlord Harassment or Privacy Violation

If the action is serious enough, harassment by a landlord or their violation of a tenant’s privacy may be enough justification for relieving a tenant of their obligations of the lease.

  • Landlord Entry. Virginia state law states that the landlord must give 24 hours notice to enter the rental property (VA Code § 55-248.18(A)). If your landlord repeatedly violates your rights to privacy or does removes windows or doors, turns off your utilities, or changes the locks, you would be considered “constructively evicted,” as described above.
  • Changing the Locks. In some states, if the locks are changed by a landlord without the tenant’s permission or without the protection of specific language in the lease agreement, this can qualify as being “constructively evicted”, and could relieve the tenant of their duties of the lease. In Virginia, lockouts are not permitted. (VA Code § 55-225.1)

5. Violation of Lease Agreement

If a landlord violates the terms of the lease agreement, it may be enough justification to break the lease and relieve the tenant from their own obligations (i.e. illegally raising the rent during the fixed period). Because each lease agreement is different, carefully read over the duties and requirements for both parties to understand if a violation has been made, and if there is language describing how certain violations are to be handled.

In Virginia, if a landlord is noncompliant in the rental of a dwelling unit:

  • If there is a material noncompliance by the landlord with the rental agreement or a noncompliance with any provision affecting dwelling units, 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 30 days after receipt of the notice if such breach is not remedied in 21 days. (VA Code § 55-225.13)
  • 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 30 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 30 days after receipt of the notice.

6. Domestic Violence

Virginia provides tenants who are victims of domestic violence with special rental provisions for their protection. If a tenant is confronting a domestic violence situation (this can also be stalking), and want to move, check with local law enforcement regarding special state laws that may apply in domestic violence situations. The state of Virginia provides victims of domestic violence the following:

  • Termination of Lease. Victims of family abuse, sexual abuse, or criminal sexual assault are granted special rights, including the ability to terminate a lease with 30 days’ notice. (VA Code § 55-225.16)  The tenant must also provide a copy of the order of protection or a copy of the conviction order.

7. Mandatory Disclosures in Virginia

Virginia law requires landlords to disclose documentation, policies, or specific unit information to tenants prior to moving in. Some disclosure laws impose heavy fines or legal ramifications to landlords if they are not followed. Others contain penalty provisions that may allow you to break your lease. If your landlord fails to provide you with a mandatory state or local disclosure speak with a Virginia landlord-tenant attorney to determine what can be done.

If the following disclosures are not provided by a landlord, the obligations of the tenant under the lease are no longer required, given that the landlord has not met their requirements under the Virginia landlord-tenant law:

  • Required disclosures for properties with defective drywall. If the landlord of a residential dwelling unit has actual knowledge of the existence of defective drywall in such a dwelling unit that has not been remediated, the landlord shall provide to a prospective tenant a written disclosure that the property has defective drywall. Such disclosure shall be provided prior to the execution by the tenant of a written lease agreement or, in the case of an oral lease agreement, prior to occupancy by the tenant. Any tenant who is not provided the disclosure required may terminate the lease agreement at any time within 60 days of notice of the discovery of the existence of defective drywall by providing written notice to the landlord in accordance with the lease or as required by law. Such termination shall be effective as of (i) 15 days after the date of the mailing of the notice or (ii) the date through which rent has been paid, whichever is later. In no event, however, shall the effective date of the termination exceed one month from the date of mailing.
  • Required disclosures for property previously used to manufacture methamphetamine. If the landlord of a residential dwelling unit has actual knowledge that the dwelling unit was previously used to manufacture methamphetamine and has not been cleaned up in accordance with the guidelines established pursuant to VA Code § 32.1-11.7 and the applicable licensing provisions of Chapter 11 (§ 54.1-1100 et seq.) of Title 54.1, the landlord shall provide to a prospective tenant a written disclosure that so states. Such disclosure shall be provided prior to the execution by the tenant of a written lease agreement or, in the case of an oral lease agreement, prior to occupancy by the tenant. Any tenant who is not provided the disclosure required may terminate the lease agreement at any time within 60 days of discovery that the property was previously used to manufacture methamphetamine and has not been cleaned up in accordance with the guidelines established pursuant to § 32.1-11.7 by providing written notice to the landlord in accordance with the lease or as required by law. Such termination shall be effective as of (i) 15 days after the date of the mailing of the notice or (ii) the date through which rent has been paid, whichever is later. In no event, however, shall the effective date of the termination exceed one month from the date of mailing.
  • Required disclosures for properties located adjacent to a military air installation. The landlord of property in any locality in which a military air installation is located, or any person authorized to enter into a rental agreement on his behalf, shall provide to a prospective tenant a written disclosure that the property is located in a noise zone or accident potential zone, or both, as designated by the locality on its official zoning map. Such disclosure shall be provided prior to the execution by the tenant of a written lease agreement or, in the case of an oral lease agreement, prior to occupancy by the tenant. Any tenant who is not provided the disclosure required may terminate the lease agreement at any time during the first 30 days of the lease period by sending to the landlord by certified or registered mail, return receipt requested, a written notice of termination. Such termination shall be effective as of (i) 15 days after the date of the mailing of the notice or (ii) the date through which rent has been paid, whichever is later. In no event, however, shall the effective date of the termination exceed one month from the date of mailing. (§ 55-225.11:1)

8. Other Reasons 

A tenant may have alternative reasons to terminate a lease early.  For example, the following reasons may legally permit a tenant to terminate the lease early, but are not always automatic and must be determined by a court:

  • Illegal or Unenforceable Contract. In some scenarios, a lease agreement may be deemed illegal and as a result, is generally not enforceable. (i.e. contracting with a minor)
  • Senior Citizen or Health Issue. Some states offer age or health-related lease-breaking arrangements that permit early lease termination.  If a tenant has a qualified disability the tenant may request early termination as a reasonable accommodation under the Fair Housing Act or the Americans with Disabilities Act. 
Questions? To chat with a Virginia landlord tenant attorney, click here

Examples of Insufficient Justification for Lease Breaking in Virginia

The below reasons are generally not enough justification (on their own) to release a tenant from the obligation of their lease term, and as a result, provide no legal protection against penalties for not honoring the lease.

  • They bought a house.
  • They are relocating for a new job or school.
  • They are upgrading or downgrading.
  • They are moving in with a partner.
  • They are moving to be closer to family.

Breaking a lease for any of the above reasons without court approval or in any conditions not previously outlined can have tangible consequences for tenants.  If a tenant would like to break a lease for any of these reasons, the tenant should ask the landlord to agree to a mutual termination.

Landlord’s Responsibility to Re-rent in Virginia

According to VA Code § 55-248.33, and VA Code 55-248.35, your landlord must make reasonable efforts to re-rent their unit instead of charging you for the total remaining rent due under the lease. This is referred to as the landlord’s duty to “mitigate damages”. If your landlord re-rents the property quickly, all you’ll be responsible for is the amount of time the unit was vacant.

Tenant’s Right to Sublet in Virginia

If the lease does not prohibit subletting, then a tenant might be in the clear to sublet. However, the lease might contain a clause requiring a tenant to obtain a landlord’s approval prior to subletting. To get the landlord’s approval, a tenant shall send them a letter through certified mail, with a return receipt requested, outlining the terms of the sublet lease agreement. Certified mail is the only proof of delivery that most courts will accept that a tenant has notified the landlord.

The letter should include the following information:

  • Sublet term.
  • Name of proposed subtenant or assignee.
  • The permanent home address of proposed subtenant or assignee.
  • Your reason for subletting or leaving permanently.
  • Your new address during the sublease if applicable.
  • The written consent of any co‑tenant.
  • A copy of the proposed sublease.

If a landlord rejects the request, know that they can only refuse the proposed subtenant based on legitimate factors. The law states that a landlord cannot unreasonably refuse to sublet.

For more information and to get a FREE Virginia sublease agreement click here.

Additional Resources for Virginia Tenants & Landlords: