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Do tenants have a right to be able to make repairs from a…

Customer Question
Do tenants have a...

Do tenants have a right to be able to make repairs from a move out inspection in Virginia?

Lawyer's Assistant: Because laws vary from place to place, can you tell me what state the property is in?

Virginia

Lawyer's Assistant: Has any paperwork been filed?

Yes

Lawyer's Assistant: Anything else you want the lawyer to know before I connect you?

We're looking to file a nonsuit to give ourselves more time since we originally filed against our property managers. The judge told us we needed to sue the landlords directly so they extended the suit to the 15th. The landlords have been informed by the property managers but have not been served.

Submitted: 10 months ago.Category: Real Estate Law
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Customer reply replied 10 months ago
We attempted to schedule a pre-inspection to prevent them from trying to nickle and dime us and they refused unless we moved everything out early. But our lease was supposed to last through the end of the month so we didn't want to do that.It seemed like they were intentionally trying to keep our deposit and it doesn't seem right. We even have the property managers advising the landlords on video that if they kicked us out they could keep part of our deposit to replace the already very old and outdated carpet.Do we have any kind of protections against predators like this in Virginia???
Answered in 19 minutes by:
9/6/2017
Real Estate Lawyer: Barrister, Lawyer replied 10 months ago
Barrister
Barrister, Lawyer
Category: Real Estate Law
Satisfied Customers: 42,513
Experience: 17 years real estate, Realtor. Landlord 26 years
Verified

Hello and welcome! My name is ***** ***** I am a licensed attorney and will try my best to help with your situation. There may be a slight delay in my responses as I type out an answer or reply.

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Are you asking if a tenant has the right to make repairs once they have moved out and surrendered possession to the landlord after an inspection?

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Or are you asking if they are they allowed to make repairs while still living there after a pre-move out inspection?

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Was there an inspection done with the tenant present and the landlord giving the tenant an itemized list of damages?

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thanks

Barrister

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Customer reply replied 10 months ago
The landlords notified us that they were not renewing the lease (again, we have surveillance video of the property manager essentially advising the home owners that if they kicked us out they could replace the already old outdated and stained carpet against our deposit).We requested a pre-inspection to make sure that we could address any concerns they may have had or make necessary repairs before we left but they would not let us unless we moved out early so the inspection was not conducted until two days after we moved out. The "itemized list of damages" was provided to us 29 days after we moved out and frankly I'm not sure if it would even be considered an itemized list of damages because it lists every possible damage to the house and did not specify what damages were from us and what was from before we moved in (many of the items listed were actually listed in our move in report and even pictured in our move in pictures).
Customer reply replied 10 months ago
Sorry if that's a roundabout answer, I'm just not sure how else to answer it...
Real Estate Lawyer: Barrister, Lawyer replied 10 months ago

Ok, so the answer is that the inspection was done after you moved out... However, the law requires a pre-move out inspection in VA and the landlord has to notify the tenant of their right to be there. This notification must be made within five days of a tenant giving the landlord their move-out notice or must be made when the landlord gives the tenant notice to vacate.

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The tenant must then respond in writing if they desire to be present during the move-out inspection. The landlord must then respond to the tenant notifying them of the date and time of the inspection. The inspection should be scheduled no more than three days before the tenant’s move-out date.

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At the actual inspection, the landlord must give the tenant an itemized list of the damages to the unit he or she has found during the inspection. See VA Code § 55-248.15:1. Security deposits.

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However, there is nothing under the statute that says a tenant must be allowed to make repairs to the property, just that they can dispute any improper charges.

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So if you feel that any deductions were improper, you can sue the landlord in small claims court for breach of contract and dispute any fictitious damages. These cases are unusual because the landlord actually has the burden of proof here to prove to the court that he is entitled to keep the damage money. You don't have to prove that he doesn't .

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As an aside, in addition to being an attorney, I have also been a landlord for over 26 years...

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thanks

Barrister

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Customer reply replied 10 months ago
Here's what happened:THEM - Dear Tenants:
We handle property inspections for PPMI (as a third party contractor) and they have asked us to perform your move out inspection. We have scheduled the inspection for Thursday, June 2, 2016. At that time, it will be necessary for the property to be vacant and cleaned pursuant to your lease terms. If you would like to meet with the inspector for a final walk through of the property at 1:30 p.m. on Thursday, June 2, 2016, please let me know. The inspector will be arriving prior to that to begin the inspection, but she will not be available to speak with you until 1:30 p.m.
If we do not receive a response from you by May 20, 2016, we will assume you do not wish to be present for the walk through and the inspector will complete the inspection at her convenience at some point on June 2, 2016.
Thank you,
Amanda
Premier Rental Inspections, LLC
12587 Fair Lakes Circle, Ste. 245
Fairfax, VA 22033
Email:***@******.***US - Hi Amanda,Thanks for the offer. Our understanding of a move out inspection is that we would have an opportunity to address areas of concern before we are officially out, but I see the date of the walk through is June 2nd, two days after our lease ends. Is there a way we could do the walk through prior to the 31st.Best regards,William and AlanaTHEM - Mr. Zimmerman,
Thank you for your email. If you will be vacating the property prior to May 31, 2016, it is possible that we can conduct the inspection prior to the end of the month. Please let me know when the property will be vacant and cleaned pursuant to lease terms and I will review our calendar for possible options.
Thank you,
Amanda
Premier Rental Inspections, LLC
12587 Fair Lakes Circle, Ste. 245
Fairfax, VA 22033
Email:***@******.***That'd be great! But to confirm, this will be a pre-walk thru inspection to let us know if there's anything we need to address from our initial walk-thru prior to our June 2nd meeting, correct? And we'll still plan
to meet you on the 2nd?Mr. Zimmerman,
Thank you for your response. No, this would not be a pre-walk through inspection. Our inspector will come in for one final move out inspection once your property is vacant and cleaned pursuant to lease terms. Following that inspection, the inspector will walk through the property with you to discuss any questions or concerns you may have. If you are concerned about minor security deposit issues, I would suggest that you make sure any burnt out lightbulbs are replaced, all drains are running freely, the HVAC filter is cleaned, and similar small details.
Please let us know if you would like to schedule the move out inspection prior to the end of the month. If you have further questions regarding security deposit matters, I would suggest you contact PPMI directly to find out if they have further suggestions on items to be mindful about.
Thank you,
Amanda
Premier Rental Inspections, LLC
12587 Fair Lakes Circle, Ste. 245
Fairfax, VA 22033
Email:***@******.***
Customer reply replied 10 months ago
The landlords offered to settle with us by offering us half of the disputed funds but seeing as though they wouldn't let us do a pre-inspection without moving out sooner and they didn't give us an itemized list until 27 days after our inspection (and the charges are bogus anyway), we feel like we should go to court because we stand a good chance of winning but we wanted to check with an expert like you to be sure. The law was unclear, for example, about how long they had to give us the itemized list.They also refused to show us the proof we requested when disputing the charges. Is that legal?Also, one of the charges in particular was lumped together and wasn't clearly itemized. They hired a contractor to do several things, but it didn't lay out how much each individual item costed to fix. We have proof that some of them were like that upon move in, others, we have other circumstances. How itemized does their list need to be?
Customer reply replied 10 months ago
If we wanted to set up a time to call, would it have to be now or could we schedule for a set time tomorrow?
Real Estate Lawyer: Barrister, Lawyer replied 10 months ago

This is exactly what the statute says:

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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 provide written notice to 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 72 hours of delivery of possession. Following the move-out inspection, the landlord shall provide the tenant with a written security deposit disposition statement, including an itemized list of damages. If additional damages are discovered by the landlord after the security deposit disposition has been made, nothing herein shall be construed to preclude the landlord from recovery of such damages against the tenant, provided, however, that the tenant may present into evidence a copy of the move-out report to support the tenant's position that such additional damages did not exist at the time of the move-out inspection.

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So it doesn't really specifically state "pre-move out" inspection or "post move out" inspection...but since it says the inspection must be done "within 72 hours of delivery of possession", that means that the tenant has already returned legal possession to the landlord.... which means that you have moved out..

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And they have to return any deposit within 45 days of you vacating See VA Code 55-248.15:1

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They also refused to show us the proof we requested when disputing the charges. Is that legal?
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Yes, they only have to prove their case if you sue them in court. They don't have to prove their case outside court.

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. I do not participate in the phone call program for the site and limit my interaction with customers only to the website because I like to have time to think about a customer’s question and research it so I can provide the best answer possible.

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However, if you have requested a phone call with an attorney, your request will post to other experts that do offer this service. When another attorney accepts your request you will get additional instructions.

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So the bot***** *****ne is that they don't have to do a pre move out inspection, only one within 72 hours of you moving out.

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But if you don't feel like their charges were legit, you can sue them in court to force them to prove that the deductions were proper and allowable..

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thanks

Barrister

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Customer reply replied 10 months ago
Okay. They didn't provide the itemized list at move out. They provided it nearly 30 days later. So what does that mean for us?And as far as the itemized list goes, they basically charged $200 and listed several things that that $200 went towards. Again, several of which we even have PROOF was in that condition upon move in. Is that 'itemized' enough in the eyes of the law to be considered passable since other things they charged for might not be quite as cut, dry, and easy to prove?
Customer reply replied 10 months ago
do we have any protections since we were essentially booted out with the INTENTIONS to keep our deposit? Does the burden of proof lie on them to demonstrate condition upon move in or does it fall on us? We didn't think to take pictures of things they're trying to charge us for (ie not caulking a tub that wasn't even caulked considering it was grouted).
Real Estate Lawyer: Barrister, Lawyer replied 10 months ago

If you had a post move out inspection where you were there and he didn't give you a written itemized list of damages, then he violated the law and that could give you grounds to sue and ask the judge to not allow them to keep anything since they didn't follow the proper procedures.

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As for itemization, it should list things like "repair 5 holes in drywall $50" or something like that, but it doesn't have to get into how much spackle was, how much sandpaper was, how much a putty knife was, etc.

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And as I mentioned earlier, when a tenant sues over a security deposit, the landlord has the burden of proof to convince the judge that the charges were legitimate.

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Oh, and ALWAYS take photos both before you move in and after you move out of every single room so you have proof of condition.

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Customer reply replied 10 months ago
we were there and they did not provide the list of damages to us. They walked us around and showed things we found but did not provide such a list or the price it was going to cost to repair. This inspection was done by a third party, not the landlord and not the property managers. Does that matter?Is there a law that says the burden of proof is on the landlord? That seemed obvious to us, too but when we were in court initially with our property managers before they told us we sued the wrong people and needed to change the suit and come back with the landlords, the judge legitimately acted as though it needed to be stated in the lease that the deposit could only be used for damages...even asking us where in the lease it stated such. It was appalling really...The itemization they provided for this charge was:DRYWALL REPAIRS & TOUCH UP PAINT: $200
- Drywall repair under white shelf
- Interior side of entry door painted
- Drywall repair and touch up paint in ceiling over steps
- Water stains treated and touched up painted in ceiling and laundry area
- Drywall repairs and touch up painted around window in MasterWould that be considered itemized? Everything else was more clear (i.e. cleaning fee, carpet replacement, master bath tub caulked, etc).We took pictures. LOTS in fact, but they just tried to nail us for ridiculous things that we never in a million years would have thought to take pictures of like the 'caulking' or lack there of on the tub. Or the screen door that had plexi glass on it from the previous owners that they tried to charge us for removing that just HAPPENED to be shown in some move in pictures that we'll be able to use but you can only barely see it there.
Customer reply replied 10 months ago
Wait, also, going back to something you said..." However, the law requires a pre-move out inspection in VA and the landlord has to notify the tenant of their right to be there."It does have to be PRE and not POST in Virginia???
Customer reply replied 10 months ago
Nevermind on that last part. I read where you clarified.
Customer reply replied 10 months ago
But going back to the drywall thing...it was $200 but the "Drywall repair and touch up paint in ceiling over steps" for example is an undisputable thing noted in the move in inspection and photos. If that were the only one we can prove (and I don't think it is), then what...the judge makes a determination about how much of the $200 we would get back? Would that qualify us for a return of the entire charge?
Real Estate Lawyer: Barrister, Lawyer replied 10 months ago

Is there a law that says the burden of proof is on the landlord? T

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No, that is just the way it works out, you can't prove a negative (I didn't do X) so the landlord has to prove a positive (the tenant did X)

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Would that be considered itemized?

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Yes, that part about the drywall would be sufficiently itemized.

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You aren't responsible for caulking the bathtub...that is a landlord's duty.

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And the screen thing is obviously not you..

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If that were the only one we can prove (and I don't think it is), then what...the judge makes a determination about how much of the $200 we would get back?

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Correct. if the charge isn't legit, you get that back in a judgment.

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It was my pleasure to work with you and help with your question. If you ever need me in the future, you can post a new question with "For Barrister" in the caption and the JustAnswer employees will get it to me.

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If you feel I have answered all your questions, I would very much appreciate a 5 star rating by clicking on the rating scale on your screen as that is the only way I receive credit for my work.

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Thanks much

Barrister

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Customer reply replied 10 months ago
To clarify, and I know it's hard to explain via text, but the question about the $200 is a little more complex than the answer...they charged $200 for several 'repairs'. If we can prove even ONE of the 5 'repairs' wasn't us, do we get the whole $200 back or would the judge use his discretion to determine how much of the $200 went toward that specific repair?
Customer reply replied 10 months ago
is there a definition or law that states deposits are only for damages? We thought the same think about the caulking but couldn't find anything in the law to back it up.
Real Estate Lawyer: Barrister, Lawyer replied 10 months ago

If we can prove even ONE of the 5 'repairs' wasn't us, do we get the whole $200 back or would the judge use his discretion to determine how much of the $200 went toward that specific repair?

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No, it isn't a blanket all or nothing deal... if you caused 3 holes but not 5, then the judge can determine you are liable for 3.

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And is there a definition or law that states deposits are only for damages?

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Yes, in the statute that I have referenced several times...

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§ 55-248.15:1. Security deposits.

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 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 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 45 days after termination of the tenancy and delivery of possession.

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Real Estate Lawyer: Barrister, Lawyer replied 10 months ago

Hello again,

.

I just wanted to touch base with you and check in.

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Did you have any further questions I can help with?

.

.

Thanks much

Barrister

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DISCLAIMER: Answers from Experts on JustAnswer are not substitutes for the advice of an attorney. JustAnswer is a public forum and questions and responses are not private or confidential or protected by the attorney-client privilege. The Expert above is not your attorney, and the response above is not legal advice. You should not read this response to propose specific action or address specific circumstances, but only to give you a sense of general principles of law that might affect the situation you describe. Application of these general principles to particular circumstances must be done by a lawyer who has spoken with you in confidence, learned all relevant information, and explored various options. Before acting on these general principles, you should hire a lawyer licensed to practice law in the jurisdiction to which your question pertains.

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