State Specific Question About: VIRGINIA (VA)

The Question: Do I still have an enforceable contract with the remaining family member based on the information below?

The circumstances| I leased a condo unit to an older couple in 2005. Both parties, the husband and wife, were signatories on the lease. In 2007 the gentleman passed away. Immediately or shortly thereafter, one of the woman’s daughters moved into the apartment with her. I did not require them to sign a new contract with the daughter on the lease. July 1, 2017, this woman, the mother, who was on the lease, passed away after a long illness. She had been in and out of the hospital and critical care units since last summer. Another party, the woman’s grandson, has been involved since May of 2016 helping to insure payments were deposited in my account by the 5th of the month, and since the elder woman’s illness, has been making the monthly payments for his mother in hopes his grandmother would recover and return home. Now the daughter and/or the grandson are hedging on the last month’s rent, wanting me to credit them with whatever will remain from the security deposit after deductions for late payments. The lease contains a SETOFF PROHIBITED clause stating that “Tenant(s) have no right to deduct the security deposit from the rental payment for the last month of any term of the Lease Agreement.” The lease also has an auto renewal clause, and the surviving daughter who has been living there with her mother for the last TEN years, has sent an Intent to Vacate Letter stating that both parties agree that the premises will be vacated by August 31, 2017.

SO, IS THIS LEASE ENFORCEABLE TO DEMAND LAST MONTH’S PAYMENT FROM THE REMAINING RESIDENT?

I don't know anything about VA, but:

The verbiage of your lease probably doesn't count, mostly because most of your issue is probably covered by state law.

In most places (IF NOT ALL), when a lease expires, then with the consent of all parties (explicitly or implicitly), the tenancy becomes a month-to-month tenancy with the same terms as the written lease. Your problem does not seem to involve the issue of tenancy, but only the issue of whether the tenants can apply the security deposit to the last month's lease. The terms of your lease probably do not give you any more power than teh state law does.

Under most if not all state law, tenants may not apply security deposit to last month's rent, unless the parties agree. If you don't fight it, then you agree. How to fight?

Its not worth it. If you write a letter refusing permission and file for eviction based on nonpayment of last month's rent, the case will likely not come up until after tenants have left anyway. And, think about what a busy judge will think of your bringing such a petty quarrel to him after the issue has already been settled by events. No much left to fight with, is there?

I don't know VA law, and this is a great example why doing things by the books is good vs. allowing a weird situation like this to develop. That said, here we are.

My non-legal, non-expert advice is you have two tenants "at sufferance", which is a legal term meaning that the original lease is no longer in effect due to the death of the original signators (husband and wife), and yet you have "suffered" (i.e. not physically, but you have 'allowed') them to live there regardless. In Missouri, this would amount to a month-to-month verbal lease which can be terminated by either party giving 30-days written notice, and the terms of which would be governed by state law regarding last month's rent and security deposit, not whatever the original lease said. The original lease "died" with the original tenants, and whatever remains of it has passed to their estate.

The original security deposit actually belongs to the estate of the deceased; therefore, the current at sufferance tenants cannot make any claim to any portion of it until the Will has been probated and funds released to them, if the court determines they are the legal heirs.

So my best guess is No, they can't just ask you to credit them rent. They either pay up or get evicted. It's gonna be a messy "he said, she said"...so get ready for a fight. If it were me, I'd lawyer up.

I rephrase my advice...if it were me, I'd give them 7 days to move out, then hand them an amount equal to the entire security deposit for their cooperation. As Moshe says, this isn't worth fighting. Get 'em out, get it cleaned up, and get it re-rented.

This might be a fun law school examination question, but what difference does it make? Moshe is right about that!

I do NOT know your state's laws.

1. In 2007, the lease might have terminated due to the death of one of the tenants. But you continued to accept rent for another 10 years. Is the daughter now considered to be a tenant? Probably, even though it does not seem that she ever signed a lease.

2. Does your lease provide for automatic renewal or is it a M-T-M?

3. Is the grandson considered to be a tenant?

4. As Moshe points out, what difference does it make, if they are actually out by the end of the month?

Warren,

Don't make this more complicated than it is.

The official lease ended when the last signatory died. The lease is over.

Add up the rent due, late fees, cleaning, repairs (subtotal) and subtract the deposit. Done.

Give this in writing within your state's legal deadline, addressed to the your leasee (the deceased person) to the last known address (your rental) and give a copy to the daughter and grandson as a courtesy.

My guess is the estate will owe you money for cleaning so send a copy to the estate's atty. But don't worry about getting money from a broke estate or a small amount after it goes thru the atty. Usually best to move on.

The SSI checks stopped and the younguns don't want to pay out of their pocket.

My other advice: get on this NOW!! YOU are the only person with anything to lose and SELDOM does anyone do the cleanup/move out work once Granny is gone. Get the place emptied and cleaned. Move the furniture to storage if necessary. No one cares about the lost rent during turnover other than you. Every day's rent is lost forever.

Best of luck!

BRAD